On January 1, a new German law aimed at reining in social media came into force.

Called the Network Enforcement Act, or “NetzDG”, social media companies from Facebook and Twitter, to YouTube, Instagram, and Snapchat will be legally obliged to remove illegal content from their sites. They will have a limited amount of time to do so. If they fail to act, they will face fines of up to €50 million.

Judy Dempsey
Dempsey is a nonresident senior fellow at Carnegie Europe and editor in chief of Strategic Europe.
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The law is interesting for several reasons.

It puts the onus on the social media giants, not the courts, to decide what is illegal content. In Germany that might not be too difficult to work out. Because of the Holocaust, since 1945 the country has one of the world’s toughest laws related to hate speech. Denial of the Holocaust or hatred against minorities can carry prison sentences. If the law relied on the courts, as some German legislators have called for because they don’t believe or want the internet platforms to decide what is hate content, the chances are that complaints would be caught up in the long administrative queues and processes.

Another consequence of the law is that it is an attempt by Germany to introduce some kind of regulatory system for social media.

Social media has for far too long been outside the traditional controls or supervision of news gathering. So if the print media, radio, and television are subject to strict regulations and standards with regard to accuracy and accountability, then why can’t social media be regulated as well?

The third aspect of the law is more difficult to quantify.

This is about who is in control in a Western democracy. The German legislation doesn’t deal with this complex issue nor does the European Commission. On January 8, with considerable nudging from Germany, five Commissioners said they would be meeting with representatives of online platforms.

They will discuss “progress made in tackling the spread of illegal context online, including online terrorist propaganda and xenophobic, racist or hate speech as well as breached of intellectual property rights.” The Commission statement added: “Terrorist propaganda and hatred online is a serious threat to security, safety and fundamental rights. It demands a collective response—from all actors, including the internet industry.”

Nice noble sentiments.

But Germany and the Commission should have also referred to disinformation spread by Russia in particular. And it need only look to Europe’s own democratically elected politicians who use social media to generate hatred, distrust of state institutions, and racism.

Just consider two recent cases tweeted by the Alternative for Germany (AfD), the far-right, anti-immigration party that is now the third largest party in the federal parliament.

Beatrix von Storch, deputy parliamentary leader of the AfD, tweeted in response to a New Year’s greeting by the Cologne police in Arabic; “Is this your way of mollifying the barbarian, Muslim, gang raping hordes of men?”

Then there was a tweet by another AfD parliamentarian, Jens Maier, who referred to the son of former German tennis star Boris Becker as a “half-nigger.” The reaction by the print media was swift: social media is not a free and open space for circumventing Germany’s stringent anti-hate laws.

Yet bringing social media into the regulatory framework is an immense challenge.

Cathryn Clüver Ashbrook, executive director of the Future of Diplomacy Project at the Harvard Kennedy School, has no illusions about the difficulties facing democracies. They still depend on traditional institutions to respond to a digital revolution that is based on speed.

“In the West, governments have been far less interest-oriented in their responses, attempting first to ‘utilize’ the tools of the communications revolution for democratization purposes, but losing out to rapidly advancing market interests, particularly in AI and big data,” she said at a recent conference in Estonia organized by the American Academy in Berlin. “These uneven developments, with respect to the manipulation of tech in the interest of the state, will impact real and perceived relative power in international relations.”

Clüver Ashbrook suggested creating new models of trust building and normative behaviors on the one hand and that diplomacy-based tools for power projection and arbitration will be urgently needed to frame this space, if regulation is no longer a realistic option.

In other words, Western democracies that are behind the curve need to catch up—if that is at all possible. At issue is a competition for power and influence.

Experts dealing with the impact that social media has on democracies argue that in the West, the private sector—particularly the tech industry—will play an increasing role.

“New and existing social movements will use the digital platforms to gain momentum. The key is speed,” Joseph Verbovszky, a strategic analyst at RUAG Schweiz AG, said.

“Both the tech industry and users of the digital platforms can move much faster than the regulatory bureaucracies. A decisive point may come when certain tech companies have to decide to submit to government regulation or side with their own constituents (user base). Net neutrality will be a significant theme in the short to mid term.”

In other words, Germany and the Commission are skirting the bigger, more fundamental issues facing democracies. It is about retaining influence. It is about protecting and projecting a liberal order that is under huge strain. It is about understanding the impact of the digital revolution. Germany’s response is only a beginning.