Platform Regulation of Hate Speech – A Transatlantic Speech Compromise?

Abstract

Continental European law on hate speech may be read - against the historically strict hierarchical societies - as forms of levelling up of ‘dignity’ which was traditionally reserved to the upper classes. This democratisation of dignity which underlies European understanding of citizenry, recognises public insult and humiliation as tools for disempowerment and exclusion, and as inconsistent with legal and political equality. Yet, this construction of empowered citizenship enabled by the State inter alia through hate speech laws is at odds with the American view of empowered citizenry. There free speech jurisprudence is based on ‘liberty’ and deeply inscribed with settler mentality, one of self-reliance and self-rule and distrust of government, whether the old-world governments left behind, or the colonial administrations belatedly encountered in the new world. This paper argues that this binary opposition in the divergent treatment of hate speech hides non-binary preoccupations that reflect different primary fears which do not fall along the same ‘scale’. European liberal democracies fear the consequences of hate speech being left uncensored in the public domain (a WHAT concern), whilst America fears the consequences of content interventions by government (a WHO concern). Flowing from this, this paper proposes that the German Network Enforcement Law (NetzDG) of 2017 which requires major platforms to moderate content in response to user takedown notices based on German legally imposed speech standards delivers a compromise solution, a bridge, between American and European speech traditions. The mechanism which NetzDG adopts, namely public standards embedded in private processes, is arguably uniquely adept at simultaneously assuaging the primary European fear about the absence of effective speech controls in the public domain and the primary American fear about the presence of governmental censorship.

Keywords: hate speech, whitman, First Amendment, NetzDG, Network Enforcement Law, content moderation, takedown duty, private censorship, public censorship, German Constitution, dignity