So, what's your point then? No judicial system possibly could, but Facebook can? Or Facebook can't either, so let's just ignore the constitution?
> More than that, it would be a textcase of privatising profits and leaving the costs to pick up for everyone else, while facebook siphoons the profits to tax havens.
Wut? Taxing Facebook more in order to finance an independent judicial system that takes care of the legal cases involving Facebook is a textbook case of privatising profits and externalising costs? I'm not sure I follow!?
Also, I'm not sure it's really exactly correct to say that Facebook is the source of these costs, given that it's citizens who say illegal things. If people meet in a pub to commit Volksverhetzung, is the pub the source of the law enforcement costs?
> Wut? Taxing Facebook more in order to finance an independent judicial system that takes care of the legal cases involving Facebook is a textbook case of privatising profits and externalising costs? I'm not sure I follow!?
Perhaps I missed where you mentioned raising taxes for Facebook as a solution. That's an interesting idea. I see two possible problems with that:
1) Facebook sells ads. Other companies sell ads. How do we decide who pays the higher tax and who not, and make it fair? For example, Google (sans Youtube and the irrelevant G+) is not a social network, but can still spread disinfo, hate speech etc. Should they pay the tax too?
2) Even if we had the money for such a judicial system, there is still the question of effectivity - the damage spreads very fast in this case, can we even design such a thing that provides good value for money while staying reasonably objective? And of course Facebook has the same problem now, as other private media (newspapers, TV stations) had before them - and the cheap solution seems to be to err on the side of caution. Are you soure we can do better?
I think it is correct, Facebook (and twitter, ...) extracts value from communication between citizens, and it looks like (e.g. from the Economist article mentiond above) also creates negative externalities that did not exist before.
Given that this is about German law ... yeah!?
> I am sure they did not ignore it when writing this law, and if they did, someone will refer it to the BVerfG, which can then cancel the law.
Which is an unfortunate tendency in recent decades, yes. Normally, the BVerfG should be an emergency brake, not a method to create maximally invasive laws.
> Anyway, private media (as opposed to public media, such as the BBC, ARD etc where the rules are very different) are not bound by laws or constitution to publish everything anyone throws at them. The corporations and individuals are free to do anything that is not forbidden by laws. So Facebook is free to decide what to publish, unless it is forbidden by law.
Yes, but that is missing the wood for the trees (and also potentially not completely true).
Facebook and the like function as sort-of public space, in that people go there to express their opinions to the public, even if the space is privately owned. Now, the state could not just prevent people from speaking in public without a proper legal process as a matter of constitutional freedoms, and that applies no matter who owns the venue. The legal process exists to make sure that only speech that really falls within the bounds of what the legislature (and by extension the constitutional court) have deemed inacceptable is stopped, so as to protect your constitutional rights. If the state tried to just broadly stop any speech that isn't obviously legal, that would be a massive violation of constitutional rights.
Now, private entities in principle are not bound by the constitution, so Facebook is free to delete whatever they want. However, that does not mean that it is therefore legal for the state to incentivise private entities to act in a way that would be unconstitutional if the state did act that way itself, as that would effectively allow the constitution to be circumvented completely. Imagine we got rid of the Strafgesetzbuch and instead created a law that entitles companies who imprison murderers to receive money from the state. Also, if you are such a company and fail to imprison a murderer, you are hit with a heavy fine. Without the StGB, the imprisonment by a private entity would be legal, and the private entity would not be bound by the constitution, so the constitution doesn't directly prevent them from imprisoning innocent people--so, everything is fine, right? Well, except it's not. The state cannot hide behind private entities when creating rules that affect constitutional freedoms. In the case of the NetzDG, the state incentivises private entities to limit legal speech, and limiting legal speech is not something the state is constitutionally allowed to do. The fact that Facebook also is allowed to delete stuff as much as it wants is not really relevant here.
But also, even property rights are limited in effectively public spaces. If you open a shop to the general public, for example, you cannot just throw out people without a good reason. I think it's conceivable the BGH might come to a similar conlusion about public online spaces at some point.
> Perhaps I missed where you mentioned raising taxes for Facebook as a solution.
I didn't explicitly mention that, but my point was that if your opinion is that they should pay for the enforcement because they make money by causing the problem, then it's a complete non-sequitur to say that therefore, they should get to make the decisions.
And not only is it a non-sequitur, it's also the complete opposite to how the rule of law normally works in a state--namely, if you want to enforce laws, you have the state do it, and if you need money to pay for it, you tax people, and if you think that a particular class of people or actions is responsible for the enforcement costs, then you try to tax them specifically. The idea that you instead effectively outsource law enforcement to a private entity is a really strange one.
How exactly to tax them correctly? I dunno! What seems pretty obvious to me is that the way taxation of such companies works right now is broken, but no clue what the correct approach would be. Though I'm not sure we should have a special tax for social networks, they simply should pay taxes here based on how much money they make here. It's just one purpose of taxes that you pay for externalities that are difficult to account individually, and that generally applies for all companies. Some cause wear to streets, some "cause" drunken people to have accidents, some "cause" people to commit Volksverhetzung. If we don't tax pubs specifically for drunk driving incidents, I'm not sure we should tax social networks specifically for hate speech incidenty.
> Even if we had the money for such a judicial system, there is still the question of effectivity - the damage spreads very fast in this case, can we even design such a thing that provides good value for money while staying reasonably objective? And of course Facebook has the same problem now, as other private media (newspapers, TV stations) had before them - and the cheap solution seems to be to err on the side of caution. Are you soure we can do better?
That is a very good question that is very hard to answer, and I suspect that the problem really needs a broader and more long-term approach than just criminal law enforcement, in particular including education.
But my primary point is that we shouldn't just ignore the constitution just because it's more convenient at the moment, and erring on the side of caution is very much the opposite of what the constitution requires when it comes to the state acting to limit constitutional freedoms. Or rather, as far as the constitution is concerned, the "side of caution" is the side of freedom, not the side of repression.
The obvious solution then would be to make it public space and not a private one. Make social networks a public utility. Then it can be governed without all the contradictions between the interest of public and private profit.
> If we don't tax pubs specifically for drunk driving incidents
However there is a special tax on alcohol (although I am not sure if this applies to all alcohol in Germany, even beer, in my country it does).
> But my primary point is that we shouldn't just ignore the constitution just because it's more convenient at the moment
Yes but what if the society is already damaged beyond repair when we finally do find a good solution?
Why does the social network have to be publicly owned for law enforcement to be "publicly owned"? Supermarkets are privately owned, but still, if I assault another customer, the case isn't decided by the legal department of the supermarket ... so what's the fundamental problem with applying that approach to social networks?
> However there is a special tax on alcohol (although I am not sure if this applies to all alcohol in Germany, even beer, in my country it does).
Well, sure, though I think the justification for that had little to do with drunk driving, given that those taxes are way older than cars ;-)
> Yes but what if the society is already damaged beyond repair when we finally do find a good solution?
Then we need to change the constitution?
I mean, the point of a constitution is that you don't just willy-nilly cross certain boundaries. You usually can still change it to a reasonable degree, but you need a large majority to do so, which should ensure that you have really thought about what you are doing.
Trampling all over the freedom rights of individuals in a panic over some perceived danger is exactly what a constitution is there to prevent, as history is full of cases where that didn't end well. There is no guarantee that that is always the right approach, but overall it seems to me that what groups of people do in a (moral) panic leads to way worse outcomes than letting some individuals do some not so nice things for a while, and constitutions exist to warn us of that danger, so we should be very careful with ignoring them.
Also, a state disregarding its constitution may be pretty damaging to society as well, as a lot of trust builds on that foundation.
I have to admit I moved the goalposts a bit. My thinking now goes like this: Many posts on facebook are not of strictly criminal nature, but are bad enough that they should not be public. And in the public sphere, there are many things that do not usually happen, that are frowned upon but not exactly criminal. Like defecating in public squares. Everyone can do that, but the absolute majority doesn't. And the reason we don't is peer pressure, public coercion, shame etc., not the threat of fines or proescution.
Now Facebook is a bit like a rundown shopping mall with gaming parlors, it stinks a lot, but lots of people use it and many use it specifically for the smell, so Zuckerberg has no motive to clean it up (unless a law forces him, like now, but then we get this discussion). What if facebook was instead a public square ran by citizens themselves. There would have to be some executive structure of course, but it would answer to the users and not to shareholders and advertisers, and that would change the whole dynamic of this situation, including moral/ethical norms of behavior.
And my experience from helping to run a small but general social network site (few thousand users at peak, no ads, 14 years running now) is that eventually this would work out better, because 'concerned citizens' gain the upper hand over trolls and hatemongers and most of the rest just accepts the prevalent norms and behave like decent people, without the thing getting too restrictive. Of course I know this won't happen with facebook and at that scale it's a completely different game but still, it would be nice.
So, no, I absolutely would not encourage anyone to use Facebook, very much the opposite, but at the same time I think that constitutional protections of freedom of speech still do apply to people who choose to use Facebook when they are using Facebook, and this law seems to me to be in conflict with that freedom.