[hwh]

A notion in the more calmed legal discussion (as opposed to lobby talk from the freedom movements, which I usually support but feel to be very narrow-sighted at the moment w/ regard to this law - see what is now carried into the comments here) is that this effect might be mitigated by a counterweight law - or rather addendum - that mitigates overreaction by the corporations.

This is german legal culture: our law system is first, foremost and mostly codified. And regulation is used more heavily than in the US law system.

Note that the stated goal of the law is most probably the exact point: making access to effective defense of your rights possible to anyone. The reality consisted of slow law enforcement (which has to act against people who made the speech in question, often anonymous or denying having done it), inaccessible data of the other party (for civil suits) and an intransparent mechanism that did not follow the german legal system on behalf of the corporations.

[zAy0LfpBZLC8mAC]

> Note that the stated goal of the law is most probably the exact point: making access to effective defense of your rights possible to anyone.

Which is completely and utterly fails at in the obvious way, in that your right to free speech is limited by a strong incentive for corporations to silence you if in doubt?

> The reality consisted of slow law enforcement (which has to act against people who made the speech in question, often anonymous or denying having done it)

And the solution to insufficient law enforcement is to have some private corporation do the job instead? I don't think that many people disagree that there was a problem, but the solution is terrible and creates lots of problems itself.

[hwh]

It mostly mirrors classic consumer protection law. It's a civil law issue and regulation in such issues is always a try to remedy imbalances of power. As law enforcement goes, there is no public office assigned to deal in behalf of a party in civil law cases. There's the courts, which are slow and arguably understaffed and with a much higher bar to access them in the first place. And regulation. Regulation does not always get it right and I'm not arguing that it did here. My point is that there was a problem and regulation tried to solve it. I don't see that bad effects were intended, which is the point I was trying to make. I think that the legal discussion in Germany mostly prefers an addendum to, not a revokation of the law in question.

[anigbrowl]

Which speech acts are likely to incur legal sanction, exactly? What about the effects of those speech acts upon their subjects? The German approach is to hold the speaker liable for that cost. Some speech acts reduce the freedom of other people.

[zAy0LfpBZLC8mAC]

> Which speech acts are likely to incur legal sanction, exactly?

This is not about legal legal sanction, but about de-facto legal sanction. By definition, Facebook is only exercising its property rights. But that doesn't change the fact that they do limit perfectly legal speech as a result of a law that forces them to decide whether a given speech act is illegal, thus putting them in the de-facto role of a court, just with completely skewed incentives.

If the same law said that a judge would have to pay heavy fines if they didn't order the deletion of "obviously illegal speech", that would incentivise judges to not respect the constitutional rights of citizens, right? And would therefore probably be unconstitutional, right? Now, this law has effectively the exact same effect, by simply making Facebook the de-facto judge with that incentive, just with the added problem that the people making the decisions have no clue of the law.

[anigbrowl]

It seems to me that Facebook is in the business of publishing people's comments and pictures on its platform in order to profit by displaying advertising next to them. As a publisher in the German market, it can be held to the same standard as any other publisher. You complain that the people making the decisions have no clue of the law, but nothing stops Facebook hiring German staff with the requisite legal knowledge to discharge that obligation, or alternatively declining to accept connections from German IP addresses.

Now that I have answered your points, please do me the courtesy of answering the question I posed above instead of deflecting it.

[zAy0LfpBZLC8mAC]

> It seems to me that Facebook is in the business of publishing people's comments and pictures on its platform in order to profit by displaying advertising next to them. As a publisher in the German market, it can be held to the same standard as any other publisher.

Well, I am not sure I complete agree (it is obviously substantially different from traditional publishers, but at the same time it's substantially different from mere printers or telcos, so I don't think it's an obvious classification), but sure, let's say that is the case.

> You complain that the people making the decisions have no clue of the law, but nothing stops Facebook hiring German staff with the requisite legal knowledge to discharge that obligation, or alternatively declining to accept connections from German IP addresses.

Which doesn't change that they in fact don't, because they have no incentive to, and that this is the behaviour that is to be expected given the incentives created by the law. The law does not create an incentive for legally educated decisions that preserve constitutional rights, the law creates an incentive to remove illegal content. The state can not hide behind private entities by pretending that the incentives it creates have nothing to do with how those private entities act. Facebook is not bound by the constitution, so they have no reason to hire legal experts to make these decisions, they will simply follow the law. It's the responsibility of the state to not incentivise private entites to violate constitutional freedoms, not the other way around.

> Now that I have answered your points, please do me the courtesy of answering the question I posed above instead of deflecting it.

I don't think I have deflected any question, rather your questions were missing the point. I don't agree with a private corporation deciding what for all intents and purposes are criminal cases and limiting constitutional freedoms based on incentives created by a questionable law. None of that implies that anyone has in fact declared Facebook a court or that Volksverhetzung should not be prosecuted--it simply means that Facebook is not the entity that should be incentivised by the state to make decisions that limit constitutional freedoms that would be obviously inacceptable if the state made those decisions itself.

If you think there still is an unanswered question, please let me know what it is.

[anigbrowl]

Facebook chooses to simply delete rather than evaluate posts. They're not forced to take the lowest cost economic option, they could decide to offer a higher-quality product at a slightly lower profit margin. The state is absolutely creating an economic incentive for publishers to consider the consequences of their publication, but it's not dictating how that should be implemented. You're blaming the state for Facebook's commercial decision to use blanket deletion.

You might feel that Facebook is obliged to choose the lowest-cost option on behalf of its shareholders. This isn't the case, legally. Conversely, Germans who want to express controversial views that might be defensible and don't want to just have them auto-deleted can always seek out another publisher or publish themselves on a blog. When I say people don't have an automatic right to publication, I mean they don't have the right to have a particular publisher host their controversial content. Presumably you would agree that Facebook is within its rights when it declines to host pornography, for example, even though I think the community standards' it cites are prudish to the point of ridicule (eg banning people for photographs of statues depicting nude figures in art museums).