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Germany Considers Fining Social Media Platform’s Failure to Remove Illegal Content

In the wake of recent public dialogue about whether or not social media plays a role in the outcome of public events, this week, German Justice Minister, Heiko Maas, has proposed a law that would see social media sites face fines of up to 50 million euros if they fail to remove illegal content from their platforms. This comes on the heels of analogous discussions in the U.S. about social media platforms' role in disseminating, and obligations to review and remove, now-coined “fake news” content. Most recently, on March 13th, 2017, Facebook CEO, Mark Zuckerberg, again defended his company against assertions that by failing to remove false content from the platform, Facebook plays a role in promulgating “fake news.” Following a November 2016 Facebook post in which Zuckerberg addressed the need to weigh the removal of “fake” or illegal content from the platform against the preservation of freedom of expression, Zuckerberg touted accusations that Facebook wants “fake news” as “crap.” Commenting at a recent talk at North Carolina A&T State University, Zuckerberg rejected the notion that Facebook views “fake news” articles as a means of inducing more “clicks.”

The draft German law requires social media sites to run 24-hour helplines for users to report illegal content (hate speech in Germany is considered illegal if such hatred constitutes incitement to discrimination, hostility or violence). Removal of clearly illegal content would be required within 24 hours, and content requiring additional investigation as to its legality would need to be deleted within seven days. Because German law categorizes hate speech as criminal, content deemed as hate speech would likely be targeted by the law. Further, “fake news” articles that are considered slanderous, defamatory, or libelous may also likely fall within in the purview of the proposed law.

In justifying the proposed law, Maas cited a survey by the justice ministry’s youth protection agency, which found that YouTube removed approximately 90% of illegal postings within one week. Conversely, the survey found that Facebook removed approximately 39% and Twitter a mere 1% of illegal postings. While the practical implications of such a law remain to be seen, it is clear that German lawmakers are intent on directing increased accountability toward social media sites in the fight to limit the distribution and reliance upon “fake news” and illegal content.

TAKEAWAY: As social media platforms continue to be the subject of dialogue regarding playing a role in combating “fake news,” U.S. based social media companies should monitor Germany and other countries’ trends toward increased regulations governing monitoring and takedown obligations.

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