Cologne media lawyer on Trump’s Twitter lock: “A fundamental problem of democracy”

Warn of Trump tweets, delete them, block them and keep Trump permanently off the service – these were the tiered measures under the house rules of the networks. They took place situationally, ad hoc and on their own. The providers themselves decide according to which rules opinions that influence world politics may be prohibited or disseminated in their networks. By programming their algorithms, social networks inevitably intervene in what is disseminated via their channels. In this way, you can ensure that content is displayed preferentially or statements are suppressed.

Are companies allowed to intervene in the free exchange of opinions?

But are companies allowed to intervene in the free exchange of opinions? May the operator of an event hall, in which a president calls citizens to violence, turn off the microphone for him, forbid the event and ban the president from the house? Yes, it should and it should. Because even the president may not call for criminal acts. But can you compare global, digital communication rooms with physical venues? In a way, yes, because calls to violence are prohibited, whether online or in the physical world. Anyone who masters these spaces must ensure order there. But there must be state rules for this.

In Germany they can be found in the Network Enforcement Act (NetzDG). It names criminal offenses such as insults and hatred and obliges providers of social networks to prevent prohibited activities on their platforms. But at this point there is a problem. In practice, companies delete a lot of content that is unfriendly and undesirable, but is therefore not immediately prohibited. Bans often only result from the provider’s house rules, which are stricter than the law. According to the NetzDG, there is no longer any examination at all.

The case of “Trump and the storming of the Capitol” shows on the one hand that the operators of the social networks are not allowed to stand idly by when words become weapons. On the other hand, a dilemma is revealed here. In the constitutional state, the democratically legitimized legislature must decide where the legal limits to freedom of expression lie and the rules according to which they are maintained. This is where public, digital communication spaces under private rule such as Facebook and Twitter differ from pubs and event halls. Opinions are not distributed there to a limited number of people, but potentially worldwide, virally and permanently available.

The state must lay down rules

Round tables in pubs may also be communication rooms. Unlike the media, however, they are not a multiplier of opinions. That is why they are not systemically relevant for freedom of expression and thus for democratic decision-making. The landlord also does not have an algorithm with which he can guide opinions. The ability of service operators to control them and the fact that basically everyone can say what they want unchecked makes internet platforms dangerous.

As with radio and the press, the state must also lay down rules for the distribution of content on social networks.

Every despot and every hate preacher who, as an enemy of the constitution, would never get a broadcasting license under our law, is allowed to sow hatred, lies and violence worldwide without any legal basis via social networks and YouTube. All over the world states are just watching. As in the “Storm of the Capitol”, the game lasts until the platform – and not the state – pulls the plug. Until then, private providers will rule over permitted and forbidden, harmless and dangerous statements.

It is precisely in this unregulated decision-making authority of private companies that there is a fundamental problem of democracy. Regardless of whether interference with freedom of expression online is legally required or not. They never come about with democratic legitimacy. As long as business enterprises in the opinion industry unchecked the line between allowed and forbidden in the network and enforce compliance, an arbitrary rule of private companies will replace the mechanisms of the rule of law.

A very promising innovation

At the beginning of the election year 2021 in Germany, too, it is about sovereignty over the definition of the limits of freedom of expression on the Internet. It lies with the state, it has to assert itself here. The aim is to effectively oblige social networks to comply with legal requirements when designing and applying house rules, deleting and blocking content.

The NetzDG can make an important contribution to this in the future. Its most recent amendment is as good as decided. It contains a very promising innovation. In future, users should be able to defend themselves against deletion decisions made by social networks. This should also be the case if the deletion is justified with the community standards of the networks. In this way, Facebook, Twitter & Co are forced to justify their interference with freedom of expression. This obligation to state reasons is new. The draft of the Digital Services Act of the EU Commission published in December 2020 also goes in this direction. This is because it requires service providers to explain in a transparent and understandable manner what the measures of their house rules are and how they work.

The NetzDG should also allow researchers in the future to obtain data on how and why illegal content spreads online. A look at the cards of the gentlemen about the algorithms can also be an important component in understanding and preventing the mechanisms behind the emergence of forbidden hatred on the Internet.