Fortunately, the first instance criminal court in Crete held the law to be unconstitutional for violating the clauses that protect freedom of expression and academic freedom. The Court found that the law could be held constitutional only to the extent that it concerns speech that is threatening, defamatory or can provoke hatred. Durkheim discusses the emergence of collective consciousness of some type as constitutive of bonds of allegiance to a community.
As such, it is an element that holds a society together. Durkheim can be read as offering a warning against the excesses of irrational elements within collective consciousness. Societies are running the risk of losing control of the irrational elements over the rational elements. The use of memory politics to reaffirm national identity is an exemplary case of irrational elements winning over the rational ones, with potentially detrimental consequences for academic freedom, as the Richter case shows.
National identity is an element of the imaginary institution of our societies.
- The Serpent;
- THE PURPLE WOMB;
- Germany’s Moral Responsibility to Support a Treaty on Business and Human Rights.
- 4 Comments.
- The statute in a nutshell.
It is based on a constructive representation of facts and memories; formed and reformed throughout time. It implies a choice among many possible narratives.
Community Spotlight
There is always some arbitrariness in the choice of elements that constitute a national identity, as it involves choosing and giving value to facts and events forming the preferred narrative that meets the needs of constructing a national identity. Using the law to solidify a version of national identity can lead to serious violations of human rights.
There is something highly problematic in using memory to form an official version of the truth that can be enforced through the law. Memory is a pre-theoretical recollection of historical events based upon and sustained by the irrational elements within our collective consciousness. As such, memory can be manipulated to serve the goals of a particular political agenda. More recent cases stirring controversy in Greece abound, where ideas and visions of national identity and the construction of memories that go together are used to sway public opinion.
Recently, the appointment of historian Lambros Baltsiotis in the position of Special Secretary for Issues of Citizenship by the Minister for Internal Affairs stirred controversy as some of his writings were considered to be contrary to the preferred narratives that form the Greek national identity. Lambros Baltsiotis has written extensively on issues of Greek national interest, offering interpretations that are considered eccentric in comparison to the dominant narrative about those facts which is seen as compatible with the Greek national identity more generally.
- NetzDG and ‘hate speech’?
- Up the duff without a paddle.
- Winner Takes All?
- El elefante de marfil (Spanish Edition).
- Germany’s Moral Responsibility to Support a Treaty on Business and Human Rights | Verfassungsblog.
- Memory Politics and Academic Freedom: Some Recent Controversies in Greece.
- ?
- Classical and Generalized Models of Elastic Rods (Modern Mechanics and Mathematics).
- ?
- Building a Log Cabin in Alaska in Four Months: Using the trees from two acres of land.
- ?
This point was seen as extremely offensive to the Greek national identity by those who objected to his appointment in the position of Special Secretary for Issues of Citizenship. The critics of his appointment noted that there are dangers in appointing to the politically delicate position that entails deciding upon the granting of Greek citizenship a person who has put forward interpretations of facts that are contrary to national interests.
Granting citizenship as a matter critical to national interests should not be entrusted to a person who has written against these interests. In the delicate context of political and national insecurity, the fact that Lambros Baltsiotis exercised his academic freedom is seen as endangering national interests. Although the controversy did not block the appointment of Lambros Baltsiotis, it indicates the dangers that the politics of memory can pose to academic freedom.
Both the cases of Richter and Baltsiotis reveal the negative unintended consequences for academic freedom from recourse to the law to express condemnation of particular historical facts. These cases arose in Greece — a country struggling under recent misfortunes and feeling the need to affirm its national identity and its importance in world history in the context of the global economic crisis.
Nevertheless, from the application of similar legislation cases threatening academic freedom have also emerged in France regarding its attempts to handle its paradoxical history as the country of human rights and of colonial domination. The complaints management infrastructure must chiefly ensure that the social networks delete or block illegal content within a specified timeframe. Deletion results in a global removal of the content from the platform, while blocking merely makes the content unavailable in Germany.
Although blocking and deleting are thus distinct, they will be collectively referred to as deleting throughout the post. Content is designated illegal if it falls under the one of the enumerated provisions of the German criminal code Strafgesetzbuch — StGB. It is important to note that the obligation to delete or block is not novel. Under that provision, social media operators are liable for illegal content on their site under criminal and private law.
Der Tag im Überblick
NetzDG further distinguishes between manifestly illegal and illegal content and prescribes different deadlines for deletion. Manifestly illegal content must be deleted within 24 hours of a receiving a complaint, while merely illegal content allows for up to seven days before action must be taken.
The most important exception to the seven-day deadline applies if operators refer the decision of whether to delete to an independent body of industry self-regulation. Such bodies must be setup and funded collectively by social media platform operators and reach independent decisions that the operator accepts as binding. Such bodies are a common feature in the German regulatory landscape and have been setup for instance by the movie, tv, and computer games industries to rate the age appropriateness of content the FSK , FSF and USK respectively.
Additionally, NetzDG requires social media platform operators to name an agent in Germany that is responsible for receiving complaints. A failure to name or lack of response from a responsible agent attracts a fine of up to It is debatable whether it is useful to view NetzDG as an attempt at curbing hate speech on social media.
This is largely due to specific criminal law provisions referenced by the statute and the peculiarities these produce. Collectively, the enumerated provisions of the German criminal code simultaneously criminalize more and less than would be encompassed by a generic ban on hate speech. Hence, the analytical value of hate speech is limited due to the particular criminal provisions NetzDG is based upon. It would be more accurate to say that the statute itself does precious little beyond seeking the removal of content that one cannot already express in public without the risk of criminal prosecution and sanctions.
The law expressly avoids creating new criminal offences and does not, in any real sense, seek to expand existing limitations on freedom of expression in Germany. The fact that one could in the past express many views that constitute incitement to hatred on social media platforms without any real fear of repercussions does not fundamentally alter that conclusion.
It is rare for legal system to treat freedom of expression as an absolute right. Most European jurisdictions, including the German Basic Law recognise that there are limits. As a matter of German constitutional law, it is not clear whether the provision would run afoul of freedom of expression. At this stage it is useful to distinguish two scenarios.
El-Kaida - 500 Beiträge pro Seite
In the first scenario, a social media platform operator deletes content that is illegal: Under the German Basic Law, freedom of expression does not cover insults and defamations, or incitement to hatred. To the extent that deletion of the illegal content amounts to an infringement, this is justified as it is provided by provisions of general laws under Article 5 II Basic Law. Moreover, deleting illegal content appears as a measured sanction, given that such statements, when made in offline scenarios, often attract criminal prosecution which may result in fines and prison sentences.
Conversely, in the second scenario the operator deletes content mistakenly deeming it illegal. Here, the issues become more complicated. The German Federal Constitutional Court has recognised that there is a presumption in favour of freedom of expression whenever it is unclear whether the expression is illegal, at least on topics of public interest.
El-Kaida - Beiträge pro Seite
Notably, this protection extends to public forums, even where access to them is regulated through private law relationships. However, NetzDG notably does not require censorship i. If overblocking does take place as a result of NetzDG, then this would indeed be would be problematic under the German Basic Law. Despite their prevalence in legal writing on the subject, concerns that social media platforms will, when in doubt, delete content rather than risk a fine, appear overstated. Overblocking is likely to arise, so goes the argument, due to the structure of the fines that apply to a systematic failure to delete illegal content.
Hence, a prudent social media platform operator would, when in doubt and confronted with a flurry of complaints, delete content that is questionable , rather than risk a fine.
With respect to illegal content, the matter is unproblematic from a constitutional perspective. For the reasons stated earlier, social media users do not benefit from protections under freedom of expression for illegal content.
Again, the more problematic scenario arises when the social media platform operator mistakenly deletes legal content. For the user, this represents an infringement of freedom of expression.
Indeed, if overblocking is a prevalent phenomenon beyond the occasional erroneous decision of the complaints management infrastructure, it could dissuade users from expressing their views on the platform. This in turn, would render the NetzDG significantly more problematic, and arguably unconstitutional.
The German NetzDG: A Risk Worth Taking?
The Federal Constitutional Court has found a violation in ordering the publishers of a satirical magazine to pay compensation to an individual for an allegedly defamatory article, chiefly basing their ruling on the risk that it would discourage future exercise of freedom of expression. However, it is not clear that such a chilling effect is inevitable: Notably, and contrary to the impression given by some reports , no fines attach to decisions in individual cases. It is difficult to see why a social media platform operator, which ultimately requires continuous user engagement and content creation to be profitable, would adopt an overly aggressive deletion policy.
An exodus of users would be sure to follow the consistent and arbitrary deletion of legal content, and thus critically undermine the viability of the social media platform. It therefore appears more likely that the limited scope of the fines and the inherent economic interests of social networks encourage a more nuanced deletion policy: The argument is that freedom of expression does not necessarily equate to a right to access to any specific means of expression.
For instance, a recipient of social security was not entitled to claim the necessary transportation costs to travel to a protest meeting.