by Saiesh Kamath, 3L at the National University of Juridical Sciences, Kolkata

As the ubiquity of the Internet reigns, social media platforms have turned into essential vehicles in facilitating participation in a democratic culture.[1] However, these platforms are also used for the dissemination of ‘fake news’.[2] Fake news is an umbrella term which is used to denote propaganda, hoaxes, trolling, and often, satire.[3] The growth of ‘fake news’ has been flagged as a global cause of concern. This is due to its demonstrated capability of subverting democratic processes[4] and instigating violence,[5] with minorities and the marginalised being disproportionately affected.[6] Since fake news achieves virality on social media platforms, there have been calls to regulate the dissemination of such content on these platforms. Some nations have passed statutes in order to deal with this crisis.[7] A critical appraisal of such regulatory laws is necessary in order to construct a framework which will effectively curb the menace of fake news. In this regard, a critical look at the German law is necessary considering the large attention it has received from legislators and legislatures of many nations.[8]

In Part I of this paper, I will introduce the German law instituted to regulate fake news. In Part II, an implication on free speech will be explored. Part III will offer an alternative framework to counter fake news.

I. The Network Enforcement Act, 2017, of Germany

The necessity of countering fake news in Germany was sharpened due to the role played by hate speech and fake news in the Presidential elections of the United States of America in 2016. Hence, the Network Enforcement Act, 2017(hereinafter the Act) was passed in order to combat hate speech and fake news online[9] – two concepts that have increasingly become interconnected.[10] The Act was brought about for two reasons. Firstly, it was to ensure the enforcement of existent provisions in the German criminal code.[11] Secondly, it was to place the onus of such enforcement on social networks[12] (hereinafter intermediaries) with two million or more registered users in Germany.[13]

The Act mandates intermediaries to provide for the user to have a complaint mechanism against illegal content online.[14] In cases of “manifestly unlawful” content, intermediaries must take down the content within twenty-four hours.[15] In order to remove or block access to any other type of illegal content, a period of seven days is provided.[16] Failure to adhere to these requirements is considered a civil violation, and carries fines of up to fifty million Euros.[17]

II. Stifling Free Speech

The Act was considered one of the most expansive laws arising from a Western nation to tackle fake news.[18] However, civil rights activists, media organisations, and other groups condemned the law due to its implications on free speech.[19] Of the many legitimate arguments, one of the most compelling was that the law stifled free speech of people.[20]

There is a chilling effect on freedom of speech in two main ways. Firstly, it arises due to the burden imposed on intermediaries to make a call on what content qualifies as legal or illegal. Secondly, it is manifested through the phenomenon of over-removal.

The main criticism of the Act arises from the obligation imposed on intermediaries to monitor and take down illegal content online. The problem with this feature is that it privatizes enforcement of the law.[21] This happens because intermediaries are obliged to make a call on the legality of content and take down illegal content. However, intermediaries do not possess the technical legal knowledge to take a call on what content qualifies as legal or illegal. Hence, to assume such a level of understanding of the law onto an intermediary so as to equate its function akin to that of the Judiciary[22] is absurd.

While this unfair obligation in and of itself does not stifle speech, it creates, a phenomenon called ‘over-removal’.[23] This phenomenon entails broad and excessive censorship. In this case, over-removal happens due to financial disincentives in the form of fines created by the Act. In scenarios where intermediaries fail in their obligation to timely remove illegal content, they are penalized with fines. Given that intermediaries do not possess a level of understanding of the law so as to guarantee correct judgement for every instance in a time-sensitive framework, they err on the side of censorship and take down even content which is legal.[24] This is also problematic because censorship tends to disproportionately take away from the voices of minority groups.[25] Considering that minorities were intended to benefit from the Act, this consequence takes away from progress made in that direction.

This violates Article 5 of the Basic Law (the Constitution) of Germany which guarantees freedom of speech, expression, and opinion to the German people.[26] Additionally, over-removal takes away from the principle of freedom of speech that is enshrined in different international human rights and civil rights treaties and conventions.[27] The same reasoning was brought forward in the case against the French law on hate speech,[28] which was inspired by the Act.[29] The Constitutional Court struck down critical provisions of the Act, one basis being that it disproportionately infringed freedom of speech. In so doing, it articulated the importance of the freedom in democratic polity.[30]

A draft to amend the Act was introduced recently,[31] but it does not make any changes to the core tent of the Act being critiqued – privatizing law enforcement.

III. From Excessive State Intervention to Community Collaboration

The issue of fake news is not an easy one to analyse, let alone resolve. However, the approach of compromising one human right for preserving another is a position that is borne from the unique German experience with the collapse of a democratic order under the Nazis.[32] As such, this approach should not be replicated with reckless abandon in other nations, especially without the existence of similar historical lessons and popular mandate.

The social utility that is derived from free speech should not be laid at the sacrificial altar without considering other frameworks. In this regard, I argue that there needs to be a shift from an excessive state interventionist approach demonstrated by Germany to a rights-respecting framework of community collaboration.

Fake news targets users of intermediary platforms in insidious ways. Its core characteristic of being viral is used to expose users to fake news. The exposure of fake news to users is additionally problematic because users are susceptible to still believe it even after corrections are issued.[33] Hence, tackling the root of this issue would be to make users more resilient to fake news.

To do this, there needs to be a strategy to decrease the persuasion value of fake news, and build psychological resistance in users. In this regard, the ‘inoculation’ theory is useful. Arising from psychology, it essentially says that users may be ‘inoculated’ to fake news by exposing them to a ‘weakened version’ of fake news.[34] This would mean that users would be exposed to relatively apparent fake news. This exercise in identifying fake news would build resilience and increase vigilance of users. This would lead to a pathway where fake news tends to be preemptively ‘bunked’.[35]

Research around the inoculation theory and its effects are promising. When contextualised around the climate change narrative, users were made resistant to a specific piece of misinformation, and hence avoided the influence carries by fake news on climate change.[36] This is also promising given that the extent and reasons for climate change remains an issue which falls on partisan lines. Hence, it holds potential to be used for other influential partisan issues which are usually subject to fake news.

This research was also extended to help users spot the common strategies employed in producing fake news.[37] By exposing users to relatively apparent manipulation strategies used by fake news disseminators, users were better able to identify the tell-tale signs of fake news.[38] This study is more potent because the relatively time-consuming exercise of inoculating users against specific pieces of misinformation is, while still holding its own value to tackle specific pieces of pernicious and persistent misinformation, now subsumed in the wider understanding of manipulation tactics surrounding fake news. Hence, it functions like a ‘broad spectrum vaccine’.[39]

This approach of radically decentralising the exercise of countering fake news is better because it takes no part in subverting human and constitutional rights, and its consequent adverse effects on democratic discourse and polity. This is because it refuses to submit to false equivalencies of trade-offs between various rights or groups of rights. This approach also has the benefit of empowering the ultimate stakeholder: the user. While the times brought on by a more digitally connected world may consist of new dangers, a framework which is comfortable with de-emphasising cherished rights and principles should not be adopted when other rights-respecting frameworks exist.

In this framework, the State would still have a role. It would be tasked with devising strategies to facilitate collaboration between communities which are countering fake news. This would increase co-ordination between communities, and enable learning and sharing best practices from each other. This would be relevant in, and respectful of, a world with increasing diversity and culture, and would serve to acknowledge that a one-size-fits-all approach is not the best fit for a problem as complex and persistent as fake news.

[1] See Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. Law. Rev. 1600 (2018).

[2] See Alberto Alemanno, How to Counter Fake News? A Taxonomy of Anti-fake News Approaches, 9 Eur. J. Risk Regul. 1 (2018).

[3] See Mark Verstraete, Derek E. Bambauer, and Jane R. Bambauer, Identifying and Countering Fake News, Arizona Legal Studies Discussion Paper No. 17-15 (2017).

[4]See Alexis Mardigan, What Facebook Did to American Democracy, The Atlantic, (October 12 2017), https://www.theatlantic.com/technology/archive/2017/10/what-facebook-did/542502/.

[5] See Reuters, Man pleads guilty in Washington pizzeria shooting over fake news, (March 24, 2017, 8:11 PM) https://www.reuters.com/article/us-washingtondc-gunman/man-pleads-guilty-in-washington-pizzeria-shooting-over-fake-news-idUSKBN16V1XC (Last visited on 11 June 2020).

[6] See Kimberly Grambo, Fake News And Racial, Ethnic, And Religious Minorities: A Precarious Quest For Truth, 21(5) U. Pa. J. Const. L. 1319 (2019).

[7] See Fathin Ungku, Factbox: ‘Fake News’ laws around the world, Reuters (April 2, 2019, 3:43 PM), https://in.reuters.com/article/singapore-politics-fakenews/factbox-fake-news-laws-around-the-world-idINKCN1RE0XW.

[8]See Jacob Mchangama and Joelle Fiss, Germany’s Online Crackdowns Inspire The World’s Dictators, Foreign Policy (November 6, 2019, 10:47 AM), https://foreignpolicy.com/2019/11/06/germany-online-crackdowns-inspired-the-worlds-dictators-russia-venezuela-india/; See also Justitia, The Digital Berlin Wall: How Germany (Accidentally) Created a Prototype for Global Online Censorship, 3, 5, 17 (November, 2019), http://justitia-int.org/wp-content/uploads/2019/11/Analyse_The-Digital-Berlin-Wall-How-Germany-Accidentally-Created-a-Prototype-for-Global-Online-Censorship.pdf.

[9]See Press Release, Global Network Institute, (April 20, 2017), https://globalnetworkinitiative.org/proposed-german-legislation-threatens-free-expression-around-the-world/; See also Alana Schetzer, Governments are making fake news a crime but it could stifle free speech, The International Forum for Responsible Media Blog, (July 21, 2019), https://inforrm.org/2019/07/21/governments-are-making-fake-news-a-crime-but-it-could-stifle-free-speech-alana-schetzer/. (‘Schetzer’).

[10] See Kirsten Gollatz and Leontine Jenner, Hate Speech and Fake News – how two concepts got intertwined and politicized, Digital Society Blog (March 15, 2018), https://www.hiig.de/en/hate-speech-fake-news-two-concepts-got-intertwined-politicised/. (‘Gollatz and Jenner’).

[11] See Heidi Tworek and Paddy Leerssen, An Analysis of Germany’s NetzDG Law, Transatlantic High Level Working Group on Content Moderation Online and Freedom of Expression 2 (2019). (‘Tworek and Leerssen’).

[12] Id.

[13] Network Enforcement Act, 2017, Art. 1 § 1(2).

[14] Network Enforcement Act, 2017, Art. 1 § 3(1).

[15] Network Enforcement Act, 2017, Art. 1 § 3(2); Tworek and Leerssen, supra note 11.

[16] Network Enforcement Act, 2017, Art. 1 § 3(3); Tworek and Leerssen, supra note 11.

[17] Tworek and Leerssen, supra note 11.

[18] See Emma Thomasson, Germany looks to revise social media law as Europe watches, Reuters, (March 8, 2018), https://www.reuters.com/article/us-germany-hatespeech/germany-looks-to-revise-social-media-law-as-europe-watches-idUSKCN1GK1BN. (‘Reuters’)

[19] See Germany: Flawed Social Media Law, Human Rights Watch, (February 14, 2018, 12:01 AM), https://www.hrw.org/news/2018/02/14/germany-flawed-social-media-law.

[20] See Schetzer, supra note 9; Germany starts enforcing hate speech law, BBC News (January 1, 2018), https://www.bbc.com/news/technology-42510868; Gollatz and Jenner, supra note 10.

[21] Tworek and Leerssen, supra note 11 at 3.

[22]See Germany: The Act to Improve Enforcement of the Law in Social Networks, Article 19, 2 (August, 2017) https://www.article19.org/wp-content/uploads/2017/09/170901-Legal-Analysis-German-NetzDG-Act.pdf.

[23] Tworek and Leerssen, supra note 11 at 3.

[24] Reuters supra note 19; Schetzer, supra note 9.

[25] See Nadine Strossen, Freedom of Speech and Equality: Do We Have to Choose?, 25(1) J Law  Pol. 214 (2016).

[26] Grundgesetz, The Constitution of the Federal Republic of Germany, 1949, Art. 5.

[27] See International Covenant on Civil and Political Rights, 16 December 1966, Art. 19; Universal Declaration of Human Rights, 10 December 1948, Art. 2.

[28] See Chloé Berthélémy, French Avia law declared Unconstitutional: what does this teach us at EU level?, EDRi, (June 24, 2020), https://edri.org/french-avia-law-declared-unconstitutional-what-does-this-teach-us-at-eu-level/.

[29] See Mark McCarthy, In France What’s Illegal Offline Is Now Illegal Online, Forbes (May 18, 2020), https://www.forbes.com/sites/washingtonbytes/2020/05/18/in-france-whats-illegal-offline-is-now-illegal-online/#2609c3ce38b5.

[30] See Manny Marotta, France Constitutional Court strikes down most of online hate speech law, Jurist, (June 20, 2020, 4:47 PM) https://www.jurist.org/news/2020/06/french-court-strikes-down-most-of-online-hate-speech-law/.

[31] European Commission, Draft Act amending the Network Enforcement Act, 2020/174/D (Germany) (Notified on 30 March, 2020).

[32] See Rainer Hofmann, Incitement to National and Racial Hatred: The Legal Situation in Germany in Striking a Balance 160 (1992).

[33] See Sander van der Linden and Jon Roozenbeek, Bad News – A psychological vaccine against fake news, LSE Impact Blog (July 31, 2019), https://blogs.lse.ac.uk/impactofsocialsciences/2019/07/31/bad-news-a-psychological-vaccine-against-fake-news/.

[34] Id.

[35] Id.

[36] See Sander van der Linden, Anthony Leiserowitz, Seth Rosenthal, and Edward Maibach, Inoculating the Public against Misinformation about  Climate Change, 1(2) Global Challenges 5, 6 (2017).

[37] See Jon Roozenbeek and Sander van der Linden, Fake news game confers psychological resistance against online misinformation, 5 Palgrave Commun. 2, 8 (2019).

[38] Id.

[39] Id.