> Which constitution? The German one?
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.