Facebook's new court defeat: This time it 'may have free speech implications'

Far-right leader's win over Facebook in a German comment case could have international ramifications.
Written by David Meyer, Contributor

Facebook has run into yet more trouble in Germany over the way it regulates speech on its platform. This time, the problem is a comment that called Alice Weidel, a leader of the far-right Alternative for Germany (AfD) party, a Nazi.

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And this time, Facebook's legal trouble could mean it has to censor something for its users around the world, to satisfy a German court.

Facebook and other big online platforms have since last year been subject to a German law called the Network Enforcement Act (NetzDG), which says they have to remove hate speech swiftly, to avoid big fines. This requirement often means cracking down on racist speech coming from the right.

However, the right is fighting back against what some see as Facebook's over-eagerness to remove potentially offensive content.

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In mid-April, a Berlin court ordered Facebook to stop deleting a comment that railed against immigrants, but while using language that arguably did not cross over into outright hate speech. The lawyer in that case was Hamburg-based Joachim Steinhöfel, who is on something of a crusade against the NetzDG.

Now, Steinhöfel has scored his second victory against Facebook in a few weeks, albeit in a very different case.

The new ruling came in a case revolving around a comment made by a user called Sanda G, who last September commented under a Huffington Post article about Weidel, who is lesbian, that discussed how she allegedly opposed gay marriage in Germany.

Sanda G's profanity-laden comment insulted Weidel's sexual orientation and called her a "Nazi Drecksau", or filthy swine. However, Weidel's legal team said Facebook only hid it from view when the politician herself complained, despite earlier attempts by other users to flag it for removal.

On Friday, a Hamburg district court ruled that the comment clearly violated Weidel's rights. It also noted that, although Facebook had blocked the comment from view for anyone visiting the site from a German IP address, it was still possible to view the comment within Germany by using a virtual private network (VPN) server in another country.

And on Monday, the court followed up that ruling with an injunction: Facebook may not make the comment viewable in Germany, and if it does, it faces a fine of up to €250,000 or imprisonment of up to two years, a threat that could apply to Facebook executives in the country.

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The court has not detailed what it expects from Facebook in terms of technical compliance. It may take weeks for it to issue its written decision.

"The comment was already geoblocked in Germany by Facebook in the past," a Facebook spokesperson said. "We will await the written decision of the court and examine next steps."

Company attorney Martin Munz responded to Friday's ruling by saying there could be implications for free speech, if Facebook were forced to apply German law internationally.

"Facebook is not a superjudge," he said at the time, claiming that he himself was unable to see the comment through a VPN.

Steinhöfel told ZDNet on Monday that, "It takes a willing suspension of disbelief that Facebook has no other means at its disposal than geoblocking," particularly as the company is so good at targeting advertising based on location.

"It is absurd, that one of the major tech companies of this planet presents itself as a second-tier hacker unable to obey the law and a restraining order of a court without global consequences for free speech. While at the same time mass-liquidating legal content," Steinhöfel said in an email. "The court put it simply: If you do not have the technical means, get 'em."

If the injunction does effectively require Facebook to apply local law internationally, it wouldn't be the first example, relating to a big US tech firm, to emanate from Europe recently.

Read also: Facebook is breaking law in how it collects your personal data, court rules

Google is currently fighting the French privacy regulator, CNIL, over the watchdog's attempt to ensure that its citizens can assert their "right to be forgotten" rights absolutely.

CNIL insists that the only way to achieve that goal is to remove objectionable results from all of Google's online properties around the world, to stop people in France from being able to view them using VPNs.

Google says this proposal is over the top, and the case has gone all the way up to the Court of Justice of the European Union, the bloc's top court.

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Previous and related coverage

Court tells Facebook: Stop deleting 'offensive' comment

Facebook's move to block a user and cut a comment from that account has been challenged by a German court.

Germany's new hate speech law goes live: So who's in its sights?

The NetzDG or 'Facebook law' is now in force with big implications for social networks.

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