The Hate Factory When Free Speech and German Law Collide on Facebook

American authorities are fining companies like Volkswagen and Deutsche Bank billions of dollars for violating the law. In Germany, though, where Facebook is allowing mass violations of hate speech legislation, the government is letting the social media platform get away scot-free.

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On February 20th, Berlin actress Jennifer Ulrich posted a video on her Facebook page documenting events in Clausnitz, a small town in the eastern state of Saxony. The video shows residents surrounding a bus filled with refugees and police pulling the terrified passengers out in order to protect them from the angry mob. "I am very ashamed right now of being German when I see the images from Clausnitz," Ulrich wrote. "My blood freezes in my veins when I see such inhumanity and hatred."

Ulrich has had a Facebook page since May 2013. She generally shares photos from films she's working on or from public appearances and adds a nice comment. Those interested in her posts tend to be either colleagues or fans.

But two days after the Clausnitz post, a Facebook user going by the pseudonym Mario Weber posted a death threat on the actress' page. "They should take a chainsaw to your shit-ugly feces face," Weber wrote. "Ulrich, your life is worthless, just die." Another post followed a few minutes later, no less direct. "The day of reckoning will come, leftist scum, and then I will be there to slaughter each and every one of you in the bloodiest way possible."

Ulrich, who has had roles in some major German movies, doesn't usually take criticism terribly seriously. It's not uncommon for people to respond snidely to her posts. Normally she just ignores them. This time, though, after contacting her agent, the actress decided to defend herself. That evening she contacted the police over the Internet and made a formal request for the incident to be investigated. She also reported the posting to Facebook, requesting that the poster be blocked.

'We Want People To Feel Safe'

Facebook promises its members that it will take action against all users who harass or threaten others. "We want people to feel safe when using Facebook," the social media platform's "Community Standards" page states.

In these standards, the company pledges to carefully review reports of "threatening language" and remove "credible threats of physical harm." Posts with the aim of shaming or degrading private individuals are also prohibited. "We don't tolerate bullying or harassment," it states under the heading "Helping to Keep you Safe."

Two days after Ulrich reported the post about sawing her face up with a chainsaw, she received a response that the post in question had been reviewed. The screening had determined that the post had "not violated our community standards."

The company provided no further explanation. Nor was it evident who had conducted the review or who had answered her once it had been completed. Unlike other companies, Facebook declines to provide names when interacting with users. As Ulrich would discover, there wasn't even a telephone number to call with follow-up questions.

Normally, the story would end here, as is the case with so many users who discover hateful comments on their Facebook pages. But Ulrich can be stubborn and doesn't give in easily when something upsets her. She posted the answer from Facebook on her page together with the question, "I wonder what this insanely friendly, apparently right-wing user would have to write in order for Facebook to deem his comments worthy of deletion?"

This time, the company identified a violation of its terms. Ulrich received a message from Facebook that her posting had been deleted and she was admonished to acquaint herself with Facebook's community standards. Then her page was blocked. When she tried to send a note to a friend, a message popped up on her screen reading, "Your account is temporarily unavailable." Later, the "Facebook Team" would explain that the deletion had been an "error". But a few days prior to that about-face, Germany's most famous actor, Til Schweiger, had intervened and taken the incident public. A tabloid newspaper in Berlin also picked up the story.

Each day, millions of people post on Facebook -- whatever it is, at any given moment, that amuses, annoys, pleases or otherwise occupies them. The social network has 29 million users in Germany alone. For many, it is no longer just the platform they use to contact their friends -- it is also their primary source of information. One out of four people use the network to get their news. Facebook has become their window on the world.

People sharing all possible interests can be found on the site today: hippies, animal lovers, people seeking to find their inner self -- but also less nice people who consider Adolf Hitler to have been the greatest statesman of all time and believe that tree huggers are evil incarnate. It's one thing for a person to privately venerate Hitler, but it's quite another when they believe they need to share their opinion with the world. That's where the problem starts.

In Germany, a high value is placed on freedom of expression, but it is not without limits -- a product of the country's murderous, 20th century history. Those who insult or defame others open themselves to lawsuits and damage payments. Some statements may even prompt prosecutors to file criminal charges. Holocaust denial, for example, is a prosecutable offense in Germany. Inciting the masses -- such as the incitement of hatred against individual groups -- or the glorification of National Socialism are also prohibited in the country.

The government is often not shy when it comes to enforcement. Horst Mahler, a former member of the Red Army Faction, a notorious left-wing German terrorist group active in the 1970s and '80s, who veered to the extreme right later in life, was imprisoned in 2009 for incitement. He was sentenced to 10 years in prison for, among other things, giving a Hitler salute and denying the Holocaust. Some perpetrators of manslaughter get lighter sentences than that.

There are also strict rules about publishing in Germany. In this country, no one can get away with saying they're just the publisher and not the author of the information they dissimenate. The editor in chief is legally responsible for the content of print publications, and at radio stations, the program director is liable. Even the publication of a letter to the editor that violates speech laws can lead to a case against an editor in chief -- and it is possible for a publication or media outlet to be shut down.

A Free-For-All Hatefest

But Facebook is a free-for-all, anything goes. You can express your wish that the chancellor be hanged or threaten to kill the children of parliamentarians. You can also disparage dissenters as "ticks," "lice," "trash" or "rubbish" and then muse on how this waste might be disposed of at the dump.

There are pages calling for the refugees in Germany to be sent to the gas chambers. Others incite people to set refugee hostels on fire so that no other outsiders will dare to come to Europe. You can find every conceivable presentation of violence, boastful displays of the swastika and the glorification of the Nazi dictatorship, concentration camps included.

All of this is publically accessible, even by children. In theory, you have to be 13 to register a Facebook account. But no one reviews whether the information in these registrations is actually accurate. And once you're registered, there are no longer any age limits for the content you can access.

A year ago in September, Chancellor Merkel was promised at a business lunch with Facebook CEO Mark Zuckerberg in New York that the company would do something about it. One of the outcomes of such political pressure was that Facebook declared its willingness to participate in a program combatting "hate speech" initiated by Germany's justice minister, Heiko Maas. The task force has met three times over the past 12 months. A week ago Monday, it convened again in Berlin in order to review progress. The event is called "Standing Together Against Hate Crimes on the Net."

But even today, you don't have to scratch far beneath the surface to find illicit content on Facebook. All you have to do is type in the question, "Did Hitler have the Jews gassed?" The search results include pages and entries claiming the Holocaust was invented by the Jews and that Hitler was used as a scapegoat by "Holocaust super liar Simon Wiesenthal."

"Why would a company take action when the worst that can happen is an invitation to the negotiating table?" asks Christoph Lauer, a prominent German Internet activist who spent five years in the Berlin city-state parliament as a member of the Net-focused Pirate Party. "I can't imagine that the Americans would ever come up with the idea of saying: After the incidents at Volkswagen, we have created a task force to find out what action we can take together."

Lauer has had his own run-ins with Facebook. In November 2015, a user posted the following comment under one of the politician's postings: "Big mouth Lauer, worry about the important things like making sure these dirty refugees don't come -- otherwise you guys will be the first to burn." Lawyers refer to this as attempted coercion, which is a crime in Germany.

Because Lauer was a member of state parliament at the time, police opened an investigation. In order to identify the suspect, who had threatened Lauer using an anonymous name, the officials responsible had to contact the Berlin office of Facebook Germany and request the IP address linked to the comment. The IP address can be used to track the computer from which the message was posted.

Opaque Procedures

At first, it looked as though the issue could be quickly resolved. A Facebook employee in Berlin said she could easily track the IP address. But it didn't take long for things to get very complicated. The police official was asked to submit a written request in English. Facebook has its own form for such incidents called a "Law Enforcement Online Request." After the first attempt, in which he detailed the legal basis for his investigation, the officer received a request from Facebook asking for additional information. It included a request for a screenshot of the page in question. When the official submitted the requested image, he received an anonymous message from the Law Enforcement Response Team thanking him for the correspondence and stating that the only option available for further information would be through international requests for judicial assistance. Thank you and goodbye.

For most, the process would end here. Many investigations don't even get that far because Facebook doesn't answer requests for assistance from German authorities or because the forms demanded by Facebook are so well hidden that the police simply give up.

But the episode with Lauer had an epilogue. After officials got lost in the Facebook's murky realms, Lauer got in touch with Eva-Maria Kirschsieper, the company's top lobbyist in Berlin. "Please describe to me the precise steps a police employee has to take in order to obtain the IP address behind a post that contains a death threat," Lauer asked Kirschsieper.

Kirschsieper answered, "I'm very sorry, but I cannot tell you. There are no step-by-step instructions available on what has to be done to obtain an IP address. Each case is reviewed individually."

Lauer then asked in response, "The CEO of your company spoke just a few days ago about programming artificial intelligence to help run his home and you can't tell me what a law enforcement agency has to do in order obtain the IP address of a perpetrator who used your company's technological infrastructure in order to make a death threat against a politician?"

Kirschsieper answered, "Because each case is different and evaluated on an individual basis, there is no standard procedure."

Is Hate Speech Allowed To Drive Traffic?

The game could just keep going on and on -- that is, if you have time for it. Lauer eventually gave up. "If Facebook refuses every form of cooperation even with a relatively well-known person like me, then how are normal people faring?" he asks.

The former Pirate Party member has a theory about why the company has no interest in taking action against members who violate German law. If the perpetrator cannot be identified because Facebook keeps that person's identity secret, then criminal proceedings won't lead to anything. As such, Facebook is offering de facto protection for hate speech. And that hate speech helps grow its traffic. Nothing is as good at keeping people coming as anger. Once people get riled up, they become blind to everything else around them. It's manna from heaven for a company whose business model is getting people to spend as much time as possible on its site.

Facebook itself encourages users to use "counter speech" to combat hate, which also helps to drive traffic. It's an infinite loop: hateful comments are followed up by counter speech, which in turn generates further hate. The Facebook-sponsored "Counter Speech Tour 2016," with several initiatives relating to refugees, recently ended.

Online companies like Facebook enjoy the privilege of being allowed to accept third-party information on their websites, sight unseen. Given the cost and complexity of screening content in advance, lawmakers in Germany have excluded such Internet providers from having to take on the same control and review of content that is required of other media. In return, however, the companies are required to respond promptly when informed about violations. If they do not act in a timely manner, then they can in fact be held liable for the content and required to pay damages. That's what Germany's telecommunications law states, and it also applies to social media -- at least in theory. In practice, however, it depends on where the company has its headquarters.

It's not as if Facebook is not deleting posts. The company can actually be quite ruthless when it comes to removing undesired content from the site. Recently, the company attracted the public's attention a number of times because management blocked individual profiles without even providing those individuals with the reasons why. This recently happened to Leo Fischer, the former editor in chief of Germany's leading humor magazine, Titanic. It also happened to Austrian novelist Stefanie Sargnagel.

From the outside, there's no clearly detectable pattern. The assumption is that Facebook relies on algorithms that react to key terms. That would help explain why the company has also blocked sites campaigning for human rights. The advantage of algorithms is that they don't cost anything to operate once they have been programmed. The disadvantage is that while they can immediately detect a breast or a penis, they are unable to distinguish between a joke and defamation.

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Comments
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tito_perdue 10/06/2016
1. German government despises its own people
How embarrassing that the German government so fears its own people that it must imitate Nazi-style censorship.
pdrdesouza 10/06/2016
2.
That's why I'm not in Facebook. People are sheepish. Google is enough.
Inglenda2 10/06/2016
3. Laws which ignore the written Constitution
Possibly the biggest problem, with the German *hate speech legislation, is the fact that the laws, intended to stop the encouragement of hate, are being wrongly used for political reasons. Facts, or even doubts, which are openly expressed, but do not agree with the official line of thought wanted, are treated as crimes. This is similar to the Polish attempt, to stop people talking about concentration camps in that country. Thereby Poland was the first country in Europe to have such camps. After the 1st World War, as from 1921, they were used to intern German speaking people. Then came the Nazis, they continued the use and increased the number of such extermination centres. After the 2nd World War ended, revenge was taken and once more it was the Germans who suffered. When it is forbidden by law to speak about such historical facts, or as is the case in Germany, about events now happening, the question must be allowed, as to whether freedom of speech really exists in the EU.
freddie 10/07/2016
4. Violations
It is commendable that you highlight individual human rights violations ironically committed by the very body which claims to be the protector of the innocent; done under the shroud of anonymity of “making Facebook a safe and welcoming environment.” It is the high time your magazine as those others in Europe should be concentrating on State Rights to recover REAL back taxes that hide behind a tax loophole. With 29 million subscribers in Germany, it is interesting to find out what is the annual tax bill Facebook commits itself or volunteers to pay into the German pot. With a solid carapace of an Irish Headquarters, its nominal tax commitment makes it convenient, as, with its laws, it decides on how much to pay the country where its revenue originate. The German government, as with US judiciary and Volkswagen, should make it its business to collect some Real sums as did France with Apple which I hope it seriously pursues. By the sound of it, when it comes to such matters as confronting US institutions, Germany as Britain here is a toothless bulldog. A strong case for voting ‘Brexit’!
Vxx 10/07/2016
5. censorship???
It is a problem when individuals who wish to disagree cannot find other ways of expression that to vie for an emotional response that is in actuality dysfunctional from the point they were trying to make. Those people often resort to emotion laden verbiage. Then an international company must tred very softly to please 200 separate countries differing laws, not adding in states,provinces and the like which may have ordinance or laws that would be applicable.
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