Regina Nagel has learnt that caution must be her guiding principle on the net. She keeps posts and comments to a minimum and is careful about who her Facebook friends are. But all that precaution was still not enough. Last September a friend shared one of her posts and it then triggered some shocking hate speech. Regina is a parish officer in the Catholic Church. At the same time, she is a member of a reform movement within the Church known as the Synodal Path, which was established in response to the child abuse scandal that continues to rock the Church. The author of the most vitrolic comment in response to Nagel’s post was a right-wing Catholic who publishes under his own name online, including disparaging comments about women in pastoral capacities. He insulted Nagel personally, and in a later post employed misogynist language to refer to her appearance. “It’s completely beyond the pale, of course. But I didn’t let it get to me,” she said. “After all, it wasn’t actually a direct threat to my health and safety, as has been the case with a number of politicians.” Still, two friends reported the abusive comment to Facebook. But so far nothing has been done and the text is still there for all to read. Social networks are mired in similar cases and the tone on the net was already often very aggressive even before the pandemic. Worst affected are women, especially women with a significant public profile. Which was why the biggest social media platforms, the likes of Facebook or YouTube, are now obliged to remove hateful posts in Germany. Starting February 1, a new and even stricter legal framework will apply. Networks with more than 2 million users will not only have to remove illegal content, they will also have to register that content and the user’s IP address with the Federal Criminal Police Office (BKA) — in principle, at least. Abusive posts will be directed to a new Central Reporting Unit for Criminal Content on the Internet (ZMI). Some 200 officials will process the reports. But the fear is that Germany’s structures for combatting and containing internet hate crime could remain almost entirely toothless.
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Incitement to hate, murder threats
Firstly, the kind of insult or defamation that was directed at Regine Nagel will not be affected by the changes. “In cases of defamation, for instance, there will be no significant improvement. This is because, with the law as it currently stands, the will of the victim is crucial in deciding whether or not charges are pressed concerning allegations of defamation,” says Josephine Ballon, senior legal advisor to the organization HateAid, which supports victims of internet hate crimes. But the decision on whether an incident — and the content involved — is reported to the BKA police unit is made by the social media platforms themselves and not the users. The focus of BKA investigations should be illegal content such as incitement to hatred, in the form of antisemitic and racist comments, murder threats and use of unconstitutional symbols. In essence, says Josephine Ballon, it is the right sort of approach.” Moreover, she says, “the basic idea behind this strategy is to ensure that the processing of hate speech reports is accelerated, leading to more prosecutions. And that can only be welcomed.” The BKA’s new reporting unit is designed to ease the growing workload already faced by prosecutors in several states, as well as facilitating the quickest possible access to IP addresses. This is of special importance given the fact that these addresses are only stored for a few days in Germany. But it is not the relevant authorities that decide on whether there is enough initial evidence to open an investigation. Instead, the social network in question decides whether a case should be brought to the attention of the BKA, which then decides if an investigation should take place. Normally, that decision is made by state prosecutors — for good reason. After all, it is only once the prosecutors have made their assessment that the police begin their investigation. It is currently not standard practice that the police decide for themselves whether to launch an investigation. This, however, is set to be the case at the new reporting unit. This in part explains why Facebook and Google are appealing against the new procedure, meaning for the time being that they do not have to report cases to BKA investigators. Josephine Ballon from HateAid says she believes the appeal is not unjustified: “The main fear is that the BKA could become one huge data swamp with an incredible quantity of reports being processed without either a court or a state prosecutors ever casting an eye on it and deciding: Is this a criminal offense or not?”
Marginal cases tricky to decide
Cases involving posts on social media are often not simply black or white and it can be tricky to come up with anything like an incontrovertible decision, warns Ballon. She points to the area of anti-constitutional symbols to illustrate her qualms: “It’s important to differentiate. Has a swastika, for instance, been posted by someone with fanatical right-wing convictions, which is indeed a criminal offense? Or is it perhaps a swastika posted in an educational or artistic context? Which in this case would be permitted.” The worst-case scenario would be if artists and activists decided not to get involved in a debate and people who haven’t posted anything that is illegal “end up buried in the BKA’s filing cabinets.” Speaking to TheTeCHyWorLD, the BKA was eager to allay such concerns, insisting that the vast majority of the people employed at the ZMI would be ordinary law enforcement officers. Their duties would also include checking the possible illegality of claims received by the agency. In all, the process developed so far ensures that, in each phase of the assessment of claims, there should be intensive consultation with the judiciary with the goal of recognizing and respecting the roles of the actors as normatively defined.” For instance, that the BKA cooperates closely with the Central Office for the Registration of Cybercrime (ZAC) and state prosecutors in Cologne. The creation of a central database is not envisaged and reports of incidents “with no criminal relevance are closed down by judicial officials with any data previously passed onto the BKA deleted as early as possible.” However, HateAid says the flood of reports could mean that this process might take up to a year. A year in which the BKA remains in possession of information about people who have not posted anything that might be deemed criminally relevant.
Social networks still go largely unmonitored
The problem remains that the initiative is still with the major platforms like Facebook or Google to report potentially criminal content to the BKA. Which is why Josephine Ballon from HateAid does not expect any big improvements from February 1st: “If people just ignore it, nothing is going to change.” Her pessimism is shared by Leonhardt Träumer, founder of ReportHate (Hassmelden), an organization that is also active on behalf of victims of hate crime on the internet. Especially because the responsibility for reporting possibly incriminating content still lies with the people who operate the platforms. Träumer says it is “as if all the many thousands of security and surveillance cameras installed by the German authorities at airports, stations and elsewhere were operated by an American company.” Employees of that company would monitor the recordings, “and only when this entirely private US company would signal that potentially criminal activity had been detected on the recorded material, would it then allow a tiny extract of the recordings to be passed on to the German authorities. It’s clearly not an efficient system,” says Träumer. The ReportHate founder says it is likely that his small independent reporting unit for hate speech will in future find itself carrying out a task “that is not actually our responsibility.” It could, he believes, take years for the courts to rule on appeals brought by Google or Facebook. This article was originally written in German. While you’re here: Every Tuesday, TheTeCHyWorLD editors round up what is happening in German politics and society. You can sign up here for the weekly email newsletter Berlin Briefing.