Mathias Hong (University of Applied Sciences Kehl; University of Freiburg) has posted Regulating Hate Speech and Disinformation Online While Protecting Freedom of Speech as an Equal and Positive Right – Comparing the Fundamental Rights’ Frameworks in Germany, Europe and the United States (Journal of Media Law Vol. 14 (2022)) on SSRN. Here is the abstract:
How does freedom of speech as an equal and positive right shape the regulation of hate speech and of disinformation online? How can we counter such harmful speech, secure equal dignity, the right to respect for personality, and save democracy from populist and autocratic attacks – without giving up on the freedom of thought and speech for dissident and even hateful ideas as such, regardless of their viewpoint or content, which is so indispensable for democracy itself?
This article compares the distinct answers to these questions given by the fundamental rights frameworks of Germany, Europe and the United States of America (‘U.S.’). It also focuses on three points where these jurisdictions may normatively gain inspiration from each other.
First, the prohibition of viewpoint discrimination should be recognised as a baseline of free speech across jurisdictions. Viewpoints or ideas as such do not justify restricting speech. Because of this baseline, which protects freedom of thought as an underlying value of freedom of speech, hate speech regulations against group libel may not extend to statements about groups too large a size.
Second, freedom of speech should be understood as an equal and positive freedom that has a horizontal effect against private parties and that creates a state duty to protect it. It demands state action in order to safeguard institutional structures that ensure the equal ability of all to exercise this right and to participate in the formation of public opinion. State action involves, for example, financing public broadcasting and, more generally, public online media. This duty to safeguard and protect plural public speech also requires regulation both against overblocking of protected speech by private internet intermediaries, and against underblocking of illegal hate speech and disinformation, especially because the harms of silencing and subordination can endanger the equality of freedom of speech itself.
The German Network Enforcement Act (NetzDG) is an example of both dimensions of this duty to protect: although it is commendable as an attempt to protect countervailing values, including equal speech itself, in its current form it violates freedom of speech in its horizontal dimension as it contains stronger protections against underblocking than against overblocking.
Third, the manifest dangers of disinformation for democracy have to be taken into account when interpreting free speech rights and government competences: freedom of speech as an equal and positive right demands protective legislative action against those dangers. The horizontal effect of freedom of speech should oblige private social media companies to provide for some fairness and diversity of viewpoints in their networks. And neither private actors nor the government should have unlimited opportunities to lie and spread disinformation.
