Bringing law and order to digital Wild West
Beatrix Amelie Ehrengard Eilika Von Storch, Duchess of Oldenburg, is not my kind of German. That her grandpa was one of three people who served continuously in Hitler’s cabinet from 1933 to 1945 is not her fault.
Becoming deputy leader of the far-right Alternative for Germany (AfD) party and something of a racist is, however, all her own doing.
She’s the sort of person who, in 2016, when the ethnically diverse German football team was losing a match, tweeted "Maybe next time the German NATIONAL TEAM should play?"
Von Storch is now being investigated over another nasty tweet. On New Year’s Eve she asked her followers: "Why is an official police site tweeting in Arabic? Did you mean to placate the barbaric, Muslim, gang-raping hordes of men?" Germany, as The Times reported on Thursday, has very strong incitement laws, and if her parliamentary immunity is lifted the duchess could face up to five years in the Deutscheslammer.
The offending tweet was expunged and her Twitter account was suspended for 12 hours. The same remarks posted on Facebook were also deleted. And well might the tech giants have moved quickly, because on January 1 a new law, the Netzwerkdurchsetzungsgesetz (NetzDG), came into force, which gives online service providers 24 hours following a complaint to take down material deemed to be illegal, hate speech or fake news. If they fail, they can be fined up to NZ$83 million.
That’s the German approach. And historically you can understand it. Holocaust denial is illegal; Mein Kampf can only be published in carefully annotated editions.
My own copy of Mein Kampf was bought online in 2008 from an American publisher because the American approach to freedom of expression is radically different.
"Congress shall make no law . . . abridging the freedom of speech, or of the press" reads the First Amendment to the constitution.
In the US, where the great internet service providers all sprang up, von Storch would be left alone by the police and her Twitter account would violate no law. Which do we want to be? Last month, the committee on standards in public life published its report on intimidation in politics.
The report contemplated a new offence of intimidating parliamentary candidates and campaigners. But its real significance lay elsewhere.
"The time has come for the government to legislate to shift the liability for illegal content online towards social media companies," it said. Lord Bew, the committee’s chairman, elaborated that "even a 24-hour period before an illegal post is taken down is an age in social-media terms - the companies should be able to do this within minutes."
Two obvious problems were not addressed in the discussion following the report’s publication. The first was that many of the worst examples of intimidation seemed to emerge from the world of print, not from the world of digital. The British MPDominic Grieve, one of the Tory "mutineers" who voted against the government on Brexit, wrote of his own experience that "Some of this [intimidatory behaviour] was fuelled and orchestrated by newspapers that seem entirely disinhibited in the inaccuracies they peddle and the vitriolic abuse
Germany’s new law tackling online fake news raises questions about the best way to impose standards on social media, writes David Aaronovitch.
they are prepared to heap . . . "
The second problem is one of definition. What, exactly, is "intimidatory" behaviour? Or indeed, "hate speech"?
How widely defined should we allow these categories to be? There are many, for example, who believe that this newspaper’s coverage of gender reassignment for children is "transphobic" and amounts to hate speech. Do we want them to define what should and shouldn’t be published?
For these two boggy reasons I suspect that we in Britain will not be changing the criminal laws on speech and expression any time soon.
What we are moving towards, as are some other European countries, is demanding that the tech companies censor things for us instead.
If we make them civilly and criminally liable for what appears on their platforms - as newspaper publishers are - they’ll police the bad stuff away.
There’s lots not to like about Big Tech. Its tendency towards monopoly, its tax practices, its profiteering and its lack of transparency. Which makes it all the more important to consider if we are happy giving it the power to censor all that content in our best interests.
Then there’s the question of scale. Can internet service providers effectively screen everything they carry before publication?
How many hundreds of thousands of moderators would be required - assuming even that was enough - to monitor social media 24 hours a day all around the world? To give you some idea of the challenge, about 6000 tweets are posted every second - maybe 200 billion per year.
I’ve seen it estimated that as much video is uploaded on YouTube in a month as was transmitted by every US TV network in the past 30 years. In the third quarter of 2017, Facebook had nearly 2.1 billion active users.
And don’t forget the law of unintended consequences.
We all accept that material inciting terrorism or showing child sexual abuse should be removed immediately. But what happens when companies are obliged to take down anything that constitutes hate speech or intimidation? Leaving aside the question of how you define them, the approach would almost certainly involve creating algorithms that delete material with certain key words or phrases as soon as they are posted.
For one thing, this would save tech giants the trouble of having to respond to potentially millions of requests to take down material that users found offensive. Better to make the mistake of wrongful deletion of posts and accounts, for which there is no penalty, than to allow something bad to get through and get dragged through the courts.
Big Tech has a lot to answer for. Its contempt for laws on decency and defamation often blot out the great advantages it has brought us.
But as we work out how to bring law and order to the digital Wild West, remember Louis Brandeis, the great US Supreme Court justice, who wrote that "without free speech and assembly, discussion would be futile; [but] with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine".