Antidiskriminierungsstelle des Bundes

Rede von Christine Lüders, Leiterin der Antidiskriminierungsstelle des Bundes, beim Runden Tisch zum Thema "Hate Speech" am 19. Mai 2016 in Helsinki (englisch)

Anfang 19.05.2016

Dear Kirsi, distinguished guests, ladies and gentlemen! I am delighted to be here today, and I would like to first thank my Finnish colleague, the Non-Discrimination Ombudsman and her team, for organising this round table. I think this promises to be a really interesting debate on an extremely timely and pressing topic.

As you know, I am the head of Germany's Federal Anti-Discrimination Agency, or FADA. Now, while FADA does not have a legal mandate to act in specific cases of hate speech, we are of course confronted with the issue on a regular basis. I have been asked to talk a bit about the German experience. I know that at least some of you have heard about the agreement that the German Federal Government has reached with Facebook, and I will talk about that in a few minutes.

But first, let me say a few things about recent developments in general. For the past two years and or so, there has been a markedly more aggressive tone in public discourse in Europe and also in Germany. Most observers agree that there is a notable increase in the amount of insults, harassment and threats online, in particular on social media and in the comment sections of major news websites. This hatred is directed against public officials, politicians, journalists and activists, but also more general, against minorities.

On the German level, this development can be tied to certain factors. Pegida, the xenophobic and islamophobic movement that started with demonstrations in Dresden is one example. Discussions surrounding the right-wing AfD party are another. And the refugee crisis has certainly been a major contributing factor.

I want to underline that we are not talking about legitimate differences over policy, we are not talking over heated arguments, nor even over radical, passionate opposition. All of this also exists and it is well within the limits of what a democratic society has to live with. But beyond that there is also a degree of venom and hatred that is clearly not acceptable. News outlets have seen this in their comment sections. Spiegel Online, Germany's most widely read news website, has drastically limited the number of articles for which they allow reader comments. Most articles on Islam or the refugee crisis will not be open for comments, because the sheer number of hate speech messages had become too overwhelming for moderators to handle. Some other news outlets like the well-regarded Süddeutsche Zeitung have altogether abandoned their online comment sections.

Online activists, particularly feminist and anti-racism activists, have also faced this hate on Twitter and elsewhere. A few weeks ago at “Republica” in Berlin, one of Europe's biggest internet conferences, one of the central topics was how to better promote counterspeech and to, quote, “organise love” as a means of countering organised hatred online. Activists rightly emphasise that it is necessary for everybody to speak up, to support victims of hate speech and to not let the people who spread it dominate online discourse.
This, of course, is often more easily said than done.

There are several very laudable projects that try to provide information resources for counter speech. The project “Search Racism. Find truth”, which was started by a refugee support group has been buying online video ads to run right before hate speech videos on Youtube. The ads feature refugees that try to offer counter evidence to the racist content of the video. Another clever project is called “Hass hilft”, or “Hate helps”. It has vowed to donate 1 Euro to anti-racism projects for every hate speech comment that is flagged to them.

Now, while these and other initiatives are great, there is still another question: And that is: What can be done on an institutional level? Postwar Germany, of course, has always held up freedom of speech as an important fundamental value, guaranteed in the Basic Law. But like in most European countries, freedom of speech has never been seen as an absolute or unlimited principle.

Freedom of speech has its limitations in laws against libel, insult, and – most importantly in this context: against incitement of hatred, or in German: “Volksverhetzung” which means “incitement of the masses”. The ban on incitement is the most important weapon in the legal fight against racist hate speech, not least because unlike “insult”, it can be prosecuted without an aggrieved party filing charges. The offense carries a maximum sentence of five years in prison. In its modern form, the ban on incitement has existed since the 1950s. And it was explicitly passed because of the experience with the Nazi party's racist propaganda in the Weimar Republic.

In spite of this being a rather old law – or maybe because of it? – it has been difficult to prosecute some rather clear cases of incitement when they occurred online. One of the reasons is the very different idea of freedom of speech that exists in the United States, and the fact that most US based internet companies do not see the various European jurisdictions as fully binding.

The fact that it is difficult, can't be an excuse not to act though. The 16 Ministers of Justice of the German federal states have realised this. On a summit in March they have agreed that a new focus on hate crime on the Internet is needed and that more effective prosecution is necessary. In fact, according, to the Federal Ministry of Justice there has already been an increase in convictions of Hate Speech Crimes in recent months.

Just a few weeks ago, Lutz Bachmann, the chief organiser of the Pegida demonstrations was convicted for incitement because of comments he made on Facebook in September 2014 – he had called refugees “animals” and “scum” among other things. According to a Dresden court he has to pay a fine of 9600 Euros. The prosecutors had asked for a prison sentence and they are now taking the case to a higher court. He could potentially face between three months and five years in prison if convicted.

It hasn't been so easy in other cases. An MP of the Berlin state parliament had filed charges for assault against a Facebook user who had severely threatened him online. In this case, Facebook refused to hand over the user's IP address and he could only be prosecuted after his identity was revealed using a different approach.

Now this leads us directly to the Facebook agreement. Cooperating in criminal cases is one thing, moderating and deleting hate speech comments is another one. In 2015, the Federal Minister of Justice and Consumer Protection, Mr. Heiko Maas, initiated a so called “task force” where Facebook and other service providers like Google and Twitter have agreed to voluntarily do more to stop hate speech. The task force's results which were presented in December include a number of measures. And while it has emphasised the importance of counter speech by civil society and inidividual users, it has also set up some rules for Facebook and the other services. They have promised to have German speaking staff that is trained on how to recognise hate speech messages and how to tell the difference between legal and illegal comments according to German law. They have promised to establish an easy, anonymous process for flagging these messages. And they have promised to delete them within 24 hours. The Ministry says it's happy with the standards that have been agreed to. The big question now will be if these standards will actually be put into practice.

Before this trip to Finland, I have asked the Ministry of Justice if half a year later they deem the agreement successful. According to them, it is still too early to fully take stock. A monitoring process has just been started on April 1st and will run for a year. Clearly Facebook has invested into infrastructure, they now do actually employ people in Germany (a number which is in the three digits) whose task it is to answer to complaints from German users. But there is still no full transparency on how this process works. And user feedback tells the Ministry that most people so far do not notice any big changes in Facebook’s practices. This confirms the experience the Ministry itself has with its own Facebook site. Whenever they report hate speech comments, Facebook tends to react faster than they used to, but they still deem some comments as not in violation of their terms of service, when the Ministry itself sees them as clear examples of hate speech.

So there are still some big question marks. Nevertheless, while the process may not have produced perfect results yet, the Ministry thinks that it was a big step forward that Facebook for the first time has implicitly accepted that national law is binding to them and that they have to go beyond a one size fits all approach for all countries. I tend to agree with this assessment. But there are certainly no easy answers as for how to win the fight against hate speech. I am now looking forward to hearing about your perspective.

Thank you very much!