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Germany: Likes on social networks for hatred and agitation could be punishable

Heilbronn / Berlin The Bundestag has passed stricter penalties for online hate. Anyone who endorses or likes the call to serious crimes could be punished in the future. CDU MP Alexander Throm from Heilbronn hopes for the deterrent effect. Criminal lawyers find the law "infinite".

Alexander Throm is proud. On Thursday, the Bundestag passed a law that the CDU MP from Heilbronn set in motion with party colleagues. "Over the past few years, unspeakable statements have created an aggressive climate in social networks," Throm says. Death threats, fantasies of violence and hate would become part of everyday life on platforms like Facebook and Twitter.

"In the past we had to find out that there is a great danger that words can be turned into actions. The murder of Walter Lübcke, or the crime in Hanau, has shown that."

Platforms should report criminal content to the BKA
That is why the Bundestag has passed a new "law to combat right-wing extremism and hate crime". It provides for numerous measures: Large platforms should not only delete criminal content, but also report it to the Federal Criminal Police Office (BKA) for review. In the future, it should be punishable to disparage the memory of the deceased.

Anti-Semitic motives are said to have a greater impact on the amount of the sentence. The threat of an act against sexual self-determination, such as rape, is also punished. Local politicians and volunteers should be able to block data in the registration register more easily.

Approval for criminal offenses becomes punishable
The core of the new law, however, is an extension of paragraph 140 of the Criminal Code (StGB), according to Throm: In future, not only will it be punishable to advocate criminal offenses, but also "to approve unrealized offenses". So far, it has been completely legal to agree to the threat of a crime, Throm explains: "Statements such as: 'get his head chopped off' and approved by likes is not punishable. The same applies to the threat against local elected officials. We are countering this with the new paragraph 140 by making criminal offenses not yet committed or not yet committed and the approval of such offenses punishable."

Throm says it should be about serious crimes against life and limb. The corresponding paragraph 140 names high treason, murder, homicide, genocide and war crimes. Anyone who supports a call for such crimes on the Internet or gives them a "thumbs up" could therefore be prosecuted in the future. "In the future, regardless of whether someone does it or not, it would be punishable simply to express or approve such a crime," explains Throm.

Law should have a deterrent effect and prevent hate posts
The deterrent effect is particularly important to him: "It is not just a question of getting many convictions for this extended criminal offense, but also that it has a preventive effect and that many hate posts no longer end up online."

The Bundestag passed the legislative package with votes from the Union and the SPD. AfD and Left voted against it, Greens and FDP abstained. Now the Federal Council has to agree. However, it is uncertain whether this will work. The state chamber had previously raised concerns. Should the project be handed over to the Conciliation Committee, there would not be enough time to pass the law before the summer break.

Criminal lawyer finds specifications "limitless"
The criticism of the law is fundamental. "The planned new paragraph 140 is pretty limitless," says Stefan Conen, lawyer and member of the criminal law committee of the German Lawyers' Association. "Even if you do not explicitly approve something, but only implicitly, i.e. in terms of behavior, that leads to criminal liability." Such a passage has already existed twice in the history of the Federal Republic, for example in the 1970s, to prevent approval of the RAF terrorists.

"At that time, however, that was abolished because people believed that this criminal offense was more likely to lead to solidarity," explains Conen. The criminal lawyer doubts that the harsher penalties will result in less hate contributions ending up online. "This is eyewash. We know from criminological research that the hope of changing behavior through the threat of criminal liability is not very promising."

It is much more important to show that criminal offenses are actually prosecuted. However, Conen doubts exactly that it is not personnel-feasible to pursue the consent to criminal offenses. "Law enforcement will not be able to honor what the law is supposed to punish."

Private platforms examine what could be punishable
Conen also criticizes the planned obligation for Facebook, Twitter and Google to report criminal content directly to the BKA. Decisive for this are offenses listed in the Network Enforcement Act (NetzDG), including the use of anti-constitutional symbols, the planning of attacks, the formation of criminal or terrorist groups or sedition. So far, the platforms have only had to delete such "potentially criminal content".

The new law provides that they are reported to a new central office at the BKA. Conen criticizes that the platforms have to do this check. "Seduction is a complicated fact that, even among lawyers, repeatedly leads to different considerations with the fundamental right to freedom of expression."

Rushing can reach thousands on the Internet
He fears that Facebook, Twitter and Google will increasingly delete content when in doubt. "As a result, the assumption of criminal liability is advanced even further than the law already provides." The future punishable approval of a crime and the expansion of existing paragraphs would also punish significantly more than today.

Alexander Throm does not dispute this: "Yes, it is an advance charge of criminal liability. But I think that is justified." Nowadays it is possible to reach hundreds of thousands of people with just a few clicks. In addition, the inhibition threshold on the Internet has dropped significantly. "Some of their statements deliberately move below the criminal liability level that is already in force today and undermine it. This will no longer be possible in the future," said Throm.

Ministry of Justice expects 250,000 cases per year
The federal government is also making money available to the federal states for more judges and prosecutors to improve law enforcement. The Federal Ministry of Justice assumes that there will be 250,000 cases a year, referring to the NetzDG transparency reports, in which the social networks have to show how many contributions have been reported by users. According to the ministry, 180 prosecutors and 75 criminal judges would be required. The German Judges Association assumes 450 additional positions are required.

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