"ReDCE núm. 35. Enero-Junio de 2021"
"ReDCE núm. 35. Enero-Junio de 2021"
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There appears to be a consensus that, although hate speech and its diffusion in many different forms is not a new phenomenon, it is increasingly attaining important dimensions, especially due to its potential for online dissemination. It is present in our everyday life and has had devastating consequences on the lives of many individuals, families and communities, not to mention its impact on society, economy, politics and culture. To illustrate this phenomenon, it is enough to point out the upsurge of xenophobic and racist actions and statements, as well as the moral and even physical violence directed at religious minorities or else driven by prejudices involving gender, sexual orientation and other characteristics.
To promote a semantic arrangement right from the start, bearing in mind the controversy on the adoption of a broad concept, hate speech involves all cases in which there are manifestations aiming at the culture of humiliation, encompassing actions such as cyber-bullying, revenge porn and the so-called cyber-lynching.[4]
It should be noted that, according to the recommendation of the Council of Europe –which is crucially relevant also to the present text– hate speech encompasses “every expression that spreads, incites, promotes or justifies racial hatred, xenophobia, anti-Semitism or any other form of intolerance, including intolerance caused by aggressive nationalism and ethnocentrism or hostility against minorities, migrants and people of immigrant origin.” [5].
In the case of the digital environment, especially in regards to Internet 2.0 and its opening –emphasizing the so-called social networks and research providers–, the dimensions of time and space became substantially and irreversibly blurred (unless there are some changes that we cannot foresee), since the Internet environment is increasingly a global and omnipresent phenomenon.
Still preliminarily and closely to our subject, it is known that manifestations of hate on the internet generally have nefarious effects, since they affect not only individuals, especially those belonging to vulnerable groups, but because they also reinforce social structures that supposedly legitimize discriminatory conducts, both at the individual and institutional level.[6]
Thus, from an individual perspective, consequences such as depression, low self-esteem, suicide attempts, self-exclusion and self-mutilation are common acts and practices of victims. On the other hand, from a collective perspective, when hatred is directed against particular social groups, the perverse impact involves diffuse effects, since all offenses generally tend to erode the bonds of social belonging.[7]
In this context, hate speech (as well as the –partially correlated– phenomenon of fake news, of disinformation) stirs up sectarianisms, instills social division, generates worrying levels of political instability and even, increasingly, represents real threats against democracy.
In fact, it is sufficient to look at the upsurge of extremisms and social and political radicalizations worldwide, including –for our purposes– especially in Germany, Europe and Brazil, where we can find greater levels of populism, authoritarianism, as well as an increase in movements of a neo-fascist nature, among others. This scenario has been intensified (to a greater or lesser extent depending on which country) in the context of the Covid-19 pandemic (Coronavirus) through the exploitation of fear, the massive use of disinformation and the so-called fake news to undermine efforts and policies aimed at struggle against the pandemic. Since the denial of science is also related to this, and with it the ever-increasing appeal to irrationality and emotions, we highlight a statement of Umberto Eco, who highlighted that both the latter are instruments and characteristics of the authoritarian and fascist regimes of yesterday, today, and tomorrow.[8]
From the perspective of Law, one of the main challenges is still the pursue to a balance between the full exercise of free expression in its many different dimensions and the necessary protection of human dignity and personality rights. Nonetheless, another challenge is to function as an instrument for the affirmation, from the transindividual standpoint, of an environment with satisfactory levels of tolerance and recognition. Without this, the Democratic Rule of Law itself, which is necessarily free, plural and egalitarian, will be at risk.
It no wonders that Frank Michelman underscores that the relationship between democracy and freedom of expression is a reciprocal conditioning and takes on a complementary, dialectical and dynamic character, so that, although more democracy may in general mean more freedom of expression and vice-versa (More freedom of speech indicates more democracy.) it is also true that freedom of expression can involve risks for and even harm democracy, while the latter, in turn, can compromise freedom of expression.[9]
Besides not being a new perspective, the possibility of the State or the community to regulate the content of freedom of expression and the ways in which it is conveyed is a highly sensitive and complex issue. At least since the English Bill of Rights of 1689 (although not with the status of a constitutional fundamental right), freedom of expression (including freedom of information) has been at the top of the catalogs of the constitutions of democratic states and has assumed the status of a human right in international treaties at the universal (UN) and regional level. Regarding the latter, that is the case, for our purposes, with the European Convention on Human Rights, the European Charter of Fundamental Rights and the Inter-American Declaration of Human Rights.
In this context, whether in an international (supranational) or on the domestic level, several measures have already been taken by legislative, executive and judiciary bodies. But these measures are not always appropriate from the point of view of their efficacy and are also controversial as regards their legal legitimacy, especially when evaluated from the perspective of the catalogues of human and fundamental rights.
There are many problems that have appeared and must be solved, as well as many respective challenges, and here they can only be analyzed in the light of some examples. Thus, we seek to identify, discuss and evaluate whether and to what extent, the regulation on a legislative and administrative level, as well as –here with a particular emphasis– how the intervention of the courts has been able to vigorously and effectively ensure freedom of expression but, at the same time, to fight the occasional abuses in what can be characterized as hate speech in the digital environment.
Even if one can no longer clearly differentiate between the offline and online dimensions, a large and increasing volume of what is found in databases and publications that were originally non-digital ends up being digitized and circulates on the Internet, with all the impact that is peculiar to such an environment.
However, besides the legal-political problem of whether how and to what extent one can or even should intervene in freedom of expression, there is the challenge regarding the efficacy and effectiveness of regulation, taking into account, among other aspects, the fact that local or even regional solutions, in themselves, already prove to be difficult and that a minimally efficacious enforcement at the global level is for now practically unfeasible, regardless of the question as to whether it is something desirable.
What is certain is that not only public authorities (national and supranational), but also private actors themselves (including internet giants like Facebook, Google, etc.) are aware of the dangers and risks caused by hate speech, as they have already implemented numerous interesting and creative initiatives, though not necessarily uncontroversial. Besides, Judges and Courts are acting in cases related to the theme, in many spheres of Law, urged to intervene in legislative and administrative options (or omissions), as well as to decide on conflicts between private individuals and the State, and private actors among themselves, producing a wealth of jurisprudence on the theme never seen.
From the legislative perspective, an example to be highlighted (and not as necessarily positive or negative at first sight) is the recent German legislation that regulates abusive content on the Internet as regards to the big social platforms, the so-called “Netzwerkdurchsetzungsgesetz” (Act to Improve Enforcement of the Law in Social Networks, henceforth referred as German Network Enforcement Act – GNEA), of September 1st, 2017.[10]
Differently from what occurred in Germany, in the case of Brazil, despite the new parameters of the Brazilian Civil Rights Framework for the Internet and of the General Data Protection Act, which only came into effect in August 2020, there is no specific legislative act to regulate the content of online publications on the social platforms, but rather a set of normative provisions applicable to the issue, which, however, lack further consideration, harmonization and even corrections and adjustments.
At the European level (transnationally), in particular about the countries covered by the European Charter of Fundamental Rights (only European Union) and the European Convention on Human Rights, there is also still no formal regulatory framework of a specific binding nature, but there are data protection provisions that can, depending on the case, be applied to the problem of hate speech,[11] as well as some soft law normative manifestations, about which we will refer later on.
However, with or without specific legislative and administrative rules, there is no lack of judicial decisions on the topic. These decisions, as regards the national higher courts and the international judicial bodies, have established a few parameters, with which one may or not agrees, but which must be increasingly presented and discussed.
Thus, our intention here is to offer not only an overview of the state-of-the-art in Germany and in Europe (from the national, transnational and supranational perspective), but also to supply a potential aid for the advancement of discussions on the topic/problem in Brazil.
The hypothesis enunciated here is that, despite significant regulatory advances and besides several important court decisions, there are major gaps to be filled. Although it is difficult to ensure a solution for all challenges, this could, at least to some extent, improve the performance of our regulatory framework in matters of legislation and administration, but also by the courts in dealing effectively with the problem of hate speech.
We justify the choice for Germany and Europe as legal frameworks to be analyzed and evaluated due to their potential use in the Brazilian, since the German law was possibly the first (at least the one that has become best known[12]) specific legislation to regulate contents in the social networks, whereas at the European level, despite the lack of a regulation of the same kind (i.e. that is binding and could be invoked effectively in the judiciary sphere), various decisions have been issued. One of the most recent and relevant ones by the European Court of Human Rights (ECtHR) is selected for the present analysis.
It should also be noted that, in European law, since there is no specific normative and binding act facing the problem of hate speech, the aforementioned courts have used, as a parameter, the human and fundamental rights contained in the European Convention on Human Rights (EConvHR) and in the European Charter of Fundamental Rights (ECtHR), as well as other binding acts, such as the General Data Protection Regulation (GDPR) of the European Union.
However, before starting with the presentation and examination of the GNEA and about the case law of the European courts, it is advisable to begin with some more general considerations on the subtle and complex relationship between freedom of expression and of information and other fundamental rights, mainly the personality rights in Germany, Europe and Brazil. Without this prior approach it is not possible, at least not as correctly as needed, to discuss the specific problems involved in hate speech and its regulation on the internet.
It should also be noted that it is not the intention here to present an inventory of the case law of the ECtHR or of the Federal Constitutional Court of Germany (FCCG) and the Brazilian Supreme Court (BSFC), nor even a selection of decisions, but only to resort to a few examples drawn from the ECtHR’s decisional practice (but representative of the general position hereby adopted) and some judgments of the Federal Constitutional Court of Germany (FCCG) and the Brazilian Supreme Federal Court (BSFC).
Although they are essential elements of a democratic order and corollaries of the liberal-individualist tradition that is at the root of modern constitutionalism, freedom of expression and freedom of assembly have always been threatened and violated and lacked specific protection, a requirement that is becoming more acute in quantitative and qualitative terms in the digital environment.
Of the highest importance, in this context, is the role taken by freedom of expression in many different legal systems, with emphasis, however, on the problem regarding the position of freedom of expression in terms of State protection compared to the other fundamental rights. The answers are known to be diverse, although there are important elements common to them, besides a growing approach between models, not only due to the processes of reception of experiences from other countries, but also of the parameters established in the sphere of the international (universal and regional) system of protection of human and fundamental rights.
From this perspective it is essential to consider –given its consequences to deal with and solve real problems– whether freedom of expression does or doesn´t have a preferred position in relation to the other freedoms and even other fundamental rights, and to what extent this position has an impact on the weighing process when one has to determine the legal legitimacy of restrictions to freedom of expression in favor of the protection of other fundamental rights and/or other legal interests that have constitutional stature.
The importance of the discussion about the relational weight of freedom of expression is that it has a direct impact on the way of coping with problems involving hate speech and its interdiction. In this context, a more or less restrictive comprehension of the legal definition of hate speech is particularly relevant, that is, in other words, the decision about which manifestations can and which cannot be classified as such and whether –and to what extent– they can be repressed.
At this point, it should be underscored that the differences between the legal systems as regards the preferred position of freedom of expression particularly in relation to the so-called hate speech are sometimes significant, as occurs, for instance, in the USA, in Europe, in Germany and even in Brazil, especially as regards Holocaust denial.
In the case of the USA, as already mentioned, the case law of the Supreme Court has remained firm regarding its long-existing view on the interpretation of the First Amendment (1791) to the Federal Constitution of 1787, which, as a rule, forbids any limitation of freedom of expression, ensuring it a strong preferred position in the constitutional architecture and vis-à-vis other constitutional rights and legal interests, attributing a very restrictive sense to the concept of hate speech for purposes of its interdiction and sanctioning.[13]
Thus, in the USA, even manifestations that are unequivocally contrary to the factual reality, including Holocaust denial, but also others such as neo-Nazi manifestations, affirmation of white supremacy, burning crosses in front of the homes of people of African descent and even (saving some assumptions) the exhortation or support to concrete and discriminatory acts of violence are as a rule considered protected by the First Amendment. However, even there, freedom of expression does not have absolute traits, since, exceptionally, eminently defamatory and slanderous manifestations are forbidden, as well as the incitation to violence.[14]
In Germany, as in general in the European environment (especially the European Charter of Fundamental Rights and even the case law of the Court of Justice of the European Union, but especially the case law of the European Court of Human Rights [ECtHR]),[15] on the contrary, the concept of hate speech, as already seen in the introductory part, is broader and consequently there is a greater possibility of setting limits on freedom of expression, as found, for instance, in the case of discourses that deny the Holocaust or convey discriminatory content.[16]
As an example, mention should be made of the decision (1 BvR 673/18) of June 22, 2018, by the German Federal Constitutional Court[17] that considered compatible with the Fundamental Law – and with the freedom of expression established and protected in it (article 5, 1) – the criminalization and consequent punishment for denial of the National-Socialist genocide, namely, in the concrete case that was the subject of the trial (with the non-admission for decision) of a constitutional complaint (“Verfassungsbeschwerde”) that challenged the decision that had convicted the claimant for having denied the occurrence of the extermination carried out in the Auschwitz-Birkenau concentration camp.
For the German Federal Constitutional Court –here in very brief words– the conscious dissemination of factual statements that can be proved to be untrue does not contribute to form an opinion in the public context and, therefore, is not protected by freedom of expression. Furthermore, the denial of the National Socialist genocide goes beyond the frontiers of a peaceful clash of ideas in the public sphere and affects social peace. Since this decision follows a tradition consolidated throughout the Federal Constitutional Court’s history, starting in the early 1950s that, although in other domains –as occurs with cartoons, satires, exhibition of photographs of public personalities, criticism directed at the government, at politicians, etc.–, it can be seen that the Court has shown to be progressively more liberal and favorable to a stronger position of freedom of expression, in more sensitive situations such as that of hate speech and, particularly, situations marked by the actions performed during the National Socialist period, it holds that manifestations of this kind should be reprimanded.[18]
When presenting the Brazilian case, although there is a tendency to gradually strengthen freedom of expression, even in the sense of a preferred position, the situation, especially regarding hate speech, is not well defined as to the content of the notion and, consequently, as to which limits can be imposed on freedom of communication, particularly the freedoms of expression and assembly.
It should be noted that, initially, the list of fundamental rights contained in article 5 of the Brazilian Federal Constitution, at least at first sight and based on the literal content of the respective precepts, apparently attributes an identical value both to protection of intimacy, privacy, honor and image and to freedom of the expression of thought and the expression of artistic, intellectual, scientific and communication activities.[19]
From the reading these constitutional provisions, there is no way –duly respecting divergent positions– to infer a necessary priority of one set of protections in relation to the other, insofar as the constitutional provision of these fundamental rights aims only at affirming –even if in a relatively indeterminate manner– the existence of these two cores of basic human liberties, which cannot be abolished, ignored or seriously penetrated by other legal claims. The limits of their exercise and the situations in which one and another will become less relevant should still be the object of specification and case law analysis.
For this reason, based on this constitutional exegesis, one must begin by recognizing that the two sets of fundamental rights are, a priori, on an equal footing, insofar as these protective spheres aim at safeguarding and protecting two distinct instances of immeasurable human value, none of them, however, absolute: the first has the purpose of enabling the full spiritual and autonomous development of each individual, as regards the protection of the inner plane of their conscience and dignity, safeguarding them from an unnecessary or stigmatizing public exposure; while the other aims at enabling full development on the external plane, not only of each individual, through the possibility of manifesting their worldview publicly, thus ensuring their self-expression –which also represents one of the dimensions of their dignity– but also through the free flow of ideas and opinions, establishing and implementing the very democratic system that our constitution establishes, which cannot develop without the possibility of externalization of a pluralism of ideas[20].
However, even though, initially, the Brazilian Federal Constitution ensures an identical protective status to privacy and the guarantee of freedom of manifestation and expression, one can see that, in relation to the latter, the constitutional texts considered that it should be more explicit and detailed as regards the criteria of control and restriction of this freedom, as seen in the constitutional rules contained in articles 220 and 221. This is because the Federal Constitution, besides establishing legislative obstacles in advance (§ 1 and § 3 of article 220), deemed it appropriates to already provide the categorical prohibition of censorship (§ 2 of article 220), as well as to establish directive principles that should guide the production of advertising, radio and television (§§ 4, 5 and 6 of article 220 and article 221).
This constitutional option can be interpreted as a sign that the constitutional conventioneers were more selective as regards the restrictions that can be applied to freedom of the press, manifestation of thought and expression than they were in relation to the protection of intimacy and privacy, which should be weighed up a posteriori to identify the situations of grave and intolerable interference in the sphere of private protection. In other words, the limits (and consequent restrictions) of such liberties are to a great extent pre-set in the Constitution, whereas possible restrictions to personality rights were left for later specification, not only by the lawgiver but also by the Judiciary’s equitable appreciation. This option of the 1988 constitutional conventioneers can be interpreted as indicating the constitutional choice to treat restrictions to freedom of manifestation and expression as something exceptional, demanding that possible additional restrictions will need a differentiated and more intense argumentative effort that will have to be able to justify the particular need for a new limitation.[21]
From this perspective it can be claimed that by means of a systematic interpretation –together with the fact that freedom of expression and information is indispensable (and even structuring) to a democratic regime– the Federal Constitution ensured for these freedoms a (relative) preferred position vis-à-vis personality rights that can be understood as a “prima facie” preference. Indeed, this has been –at least so far– the view that has prevailed in the Brazilian literature (although there is a significant dissent)[22] and in case law, especially in the Higher Courts, particularly the Federal Supreme Court, at least when taking into account the main cases tried in recent years and that has pointed to a preferred position of freedom of expression and information.
Among the cases tried by the Brazilian Supreme Federal Court (BSFC) involving freedom of expression and indicating its preferred position, it is possible to mention the declaration of non-acceptance –due to its incompatibility with the Brazilian Federal Constitution– of the then Press Act elaborated during the military regime, when the Rapporteur, Judge Carlos Britto mentioned that freedom of expression occupies an almost absolute position and can only be the object of limitation in cases expressly established by the Federal Constitution, namely the right to compensation and the right of a reply.[23] Likewise two other cases stand out, the so-called “Marijuana March,” in which the BSFC found that a public and collective manifestation in favor of legalizing the use of marijuana could not be classified in the penal definition of incitement to crime.[24] More recently, reference should be made to the case of non-authorized biographies in which the Court decided that the requirement for a previous authorization by the person whose biography was written was unconstitutional,[25] and also to the judgment that established a difference, as regards the electoral process, between criticism conveyed by manifestations of humor in general, such as satires and cartoons, and the so-called fake news, allowing the former and forbidding the latter.[26] In addition to this, a very recent judgment, dated February 11th, 2021 and reported by Justice Dias Toffoli, in which, by an overwhelming majority, the Court denied the existence of a broad right to be forgotten, reaffirming the priority position of freedom of expression and information.[27]
However, none of the cases mentioned involved the convey of information (expressions or manifestations) that were clearly untruthful or intrinsically offensive (insult, defamation and even slander) nor even situations in which one could say with conviction that they were examples of the so-called hate speech. Especially in the case of the latter, there is no way to avoid mentioning the main precedent of the Brazilian Federal Supreme Court, in 2003, involving the confirmation of the criminal conviction for racism of the author and publisher of a work that denied the Jewish Holocaust during World War II, which precisely does not sustain the thesis of the preferred position of freedom of expression, although three Judges issued a divergent opinion.[28]
It is clear, on the other hand, that Holocaust denial (which has already long been criminalized in Brazil) represents a very special and impactful case, justifying here a differentiated view, but at the same time it is also known that depending on the prevalence assigned to freedom of speech, as in the case of the USA, the solution may be different.
The position of the BFSP, since the Ellwanger case, is not very well defined, and we are also not able to establish some more solid parameters, regarding the limits of freedom of speech in cases that conventionally fall under the category of hate speech (at least understood in a broad sense, as seen in the introductory part of the text). There are a few judgments that could be collected in this perspective, which, however, will be the object of attention in the next segment.
In view of the brief presentation regarding how the relation between freedom of expression and other fundamental rights –highlighting the personality rights– is understood and managed, in general terms, but especially as regards its more or less privileged position in the United States, German, European and Brazilian legal systems, we refer to the next segment for a more detailed approach to this aspect which concerns hate speech.
Wherever it may be, a possible limitation of the freedom of expression, especially aimed at certain discourses, has been justified based on its impacts on personality rights and their content in terms of human dignity (such as the rights to privacy, honor, image, name, and others), but also when the purpose is to prevent segregation, discrimination of all kinds and incitation to violence, affecting vulnerable groups and even compromising democracy itself.
On the other or lesser weight given to freedom of expression in a particular legal system and the scope given to the content of the so-called hate speech have, as already mentioned, a particular relevance also in the environment of the internet, which will now be examined from the European perspective, especially as regards the normative framework of the European Convention on Human Rights (EConvHR) and the case law of the European Court of Human Rights (ECtHR), but also in the light of the German Network Enforcement Act (GNEA) and the normative framework and case law (Here with emphasis on the Brazilian Supreme Federal Court [BSFC]).
As regards the digital environment, which is the subject of our attention, the case law of the ECtHR is outstanding in Europe, here represented by the case of Belkacem v. Belgium, issued on June 27th, 2017[29], as well as the case of Beizaras and Levickas v. Lithuania, judged on January 14th, 2021. In a summary, the first case concerns the legitimacy, from the perspective of the EConvHR, of the criminal conviction (in 2012), of the Belgian citizen Belkacem, the leader and mouthpiece of the “Sharia4Belgium” organization, sentenced to two-years in prison, due to an online publication on YouTube containing offensive videos inciting to discrimination against non-Muslim people, having as main target the then Minister of Defense of that country.
It should be noted that in the aforementioned videos websurfers were provoked to domination and to the performance of acts of fighting founded on the apologia for the “jihad” and “sharia”, and Belkacem was sued based on Belgium’s Anti-Discrimination Law of 2007. According to the Court of Antwerp, it was evident the intentional, explicit and reiterated character of the offenses and incitation to discrimination and violence. Besides the prison sentence, it was also imposed a fine of five hundred and fifty euros. The conviction, except for the revision of the prison time, was upheld on appeal (2013).
In response to an individual appeal presented in April 2014, based on the denial of the acts of incitement and hate speech, as well as supported by the right to freedom of expression enshrined in article 10 of the EConvHR, the ECtHR considered that there had been a clear abuse in exercising this freedom due to the offensive, discriminatory and violent character of the content of the videos posted by the appellant, directed at all non-Muslims, and also applied the disposition of article 17 of the aforementioned Convention. According to the ECtHR, the content of the videos and the manifestations made by Belkacem were an attack on the values of tolerance, social peace and non-discrimination that underlie and permeate that Convention. Particularly as regards Belkacem’s references to “sharia”, the Court reiterated its view – mentioned in the introduction – that the online propagation of discourses encouraging acts of violence can be classified as hate speech and, for this reason, each State Party of the Convention has the right to oppose movements of this kind, based on religious fundamentalism. As a result, the Belgian legislation based on which the sentence condemning Belkacem was given is fully compatible with the EConvHR, the case law of the Court and the recommendations of the Council of Europe aimed at combatting the incitement to hate, discrimination and violence.
In a more recent judgment, namely the case of Beizaras and Levickas v. Lithuania, judged on January 14th, 2021, the ECtHR recognized a violation of the prohibition of discrimination enshrined in article 14 of the EConvHR, in combination with a violation of the right to private and family life (article 8), as well as a violation of the right to effective judicial protection (article 13). In a very brief summary, the Court condemned Lithuania for failing to fulfill its duty to protect individuals against homophobic hate speech, since the prosecuting authorities and the national judiciary did not properly address the complaints made by two young men. The victims, as a result of the publication (by one of them) on Facebook of a photo of them kissing, were target of hundreds of comments of offensive and aggressive nature, some directed at the LGBT community, in general terms, and others directed against the plaintiffs in the case before the ECtHR.
According to the responsible national agencies, the behavior of the victims had been provocative and that, although unethical, the comments were not liable. For the ECtHR, the refusal to open an investigation was related to prejudice and discrimination regarding sexual orientation, since it was denied protection in the criminal sphere due to discriminatory offenses and even calls for physical violence and psychological attacks toward the victims. Thus, the Lithuanian authorities has not demonstrated that the different treatment was compatible with the terms of the Convention. Furthermore, the ECtHR held that the judicial precedents of the Lithuanian Supreme Court considered in the national decision to not open the investigation are also not in accordance with the Convention, since they refer to homosexuality as ‘eccentric behavior’ and that members of such minorities should respect the traditions and opinions of others[30].
Regarding Germany, in the case of the FCCG jurisprudence, as already anticipated, hate speech has also been recurrently on the court’s agenda. It is noteworthy that, in addition to a pro-free speech evolution and even a (relative) preferred position, there are already decisions regarding the Internet domain.
As already remarked by the first author in a Brazilian legal news website (Revista Consultor Jurídico) in his recurring column, in one of the most recent judgments of the FCCG, issued on July 7th, 2020, the German Court revisited and updated important arguments related to the object and scope of freedom of expression, even though it did not admit the constitutional complaint (“Verfassungsbeschwerde”) for trial. As for the arguments, the court particularly (and more than understandably) highlighted the sensitive problem of hate speech against Jews and even the Jewish community itself.
In the specific case at hand, the local president of an association of the Right-wing Party (“Die Rechte”) –who has already been criminally convicted several times– was sentenced to six months´ imprisonment without parole for insulting (“Beleidigung”) and inciting hatred against a certain population group (“Volksverhetzung”), namely the Jewish population. The facts that gave rise to the criminal proceedings in the ordinary courts deserve a brief description. To this end, we have made use of the summary published in the FCCG newsletter, on July 10th, 2020, and the narrative of the facts contained in the reasoning of the decision.
In the case, prior to the penalties, the news website “Westdeuscher Rundfunk” had reported that a certain community in the state of Nordrheinwestfalen had its own official journal run by a publishing house whose owner issued writings of a radical right-wing orientation. As a result, the leader of a Jewish community in the region demanded that the official journal referred to be republished by another publishing house.
This led the petitioner of the case in analysis –at the time president of a local association linked to the aforementioned political party– to publish on the website of the association, under his responsibility, a series of manifestations that gave rise to the criminal case faced by him and whose verdict he sought to challenge before the FCCG. In the published article, the plaintiff ran under the headline ‘State Media, Left and Jewish Community,’ he called the Jewish community representative a ‘cheeky Jewish official,’ since the later had called upon the municipality to no longer publish in the plaintiff's publishing house.
Furthermore, the article insists in an ‘insidious campaign by the media, the left and the Jewish community,’ calling for ‘the immediate cessation of all cooperation’ with the latter. In the same text, the plaintiff states that the party ‘‘The Right’ wants to reduce the influence of Jewish lobby organizations on German politics in a very short time to zero’, in addition to ‘cutting all state subsidies for Jewish communities and earmarking the resources for the common good.’ Note, further, that the plaintiff also described himself a ‘non-conformist political editor’ – to a book he edited on ‘exemplary and proven men of the SS armed forces’ (“vorbildliche und bewährte Männer der Waffen SS”).
In the case in analysis, this concerns a legally legitimate restriction, since we are dealing with manifestations that represent a violation or concrete threat to legal interests as is the case precisely with speeches that are directed against certain people or groups and that take on the character of sedition or attack the urbanity of public debate. This is precisely the case with speeches that are directed against certain people or groups, and that have a seditious character or attack the urbanity of public debate.
According to the judgment of the German Constitutional Court, although a ban and criminalization of generic right-wing radical and even national socialist speech is not, as such, compatible with the requirements of freedom of expression, it is necessary to place such manifestations in the proper context. In this sense, the decision states that German historical experience has shown that the systematic and targeted persecution and boycott of the Jewish community paved the way for its extermination.
In the concrete case –still according to the judgment– the use of the expression ‘cheeky Jew’, as well as the positive reference to the members of the Waffen SS, can be directly linked both to the use of the same and similar expressions conveyed by the National Socialist propaganda, and to the fact that the SS were responsible for the planning and execution of the Holocaust. Moreover, the reference to the purpose of the elimination ('reduction to zero level') of any and all political influences of the Jewish community reveals an adherence to the Nazi rhetoric of extermination, concretely threatening the peaceful character of the political debate.
The decisions of the ECtHR and the FCCG, illustratively mentioned, show that both Courts have been aware of the phenomenon of hate speech on the Internet and have been firm in prohibiting it, not only admitting but also demanding its containment and sanctioning by the competent state bodies, including through criminalization.
On the other hand, this does not mean that the ECtHR –as well as the FCCG– has, even in the decisions portrayed here, opened the possibility of any kind of measure limiting freedom of expression or even endorsed an overly elastic interpretation of the concept of hate speech for this purpose. For this reason –but also from the perspective of national legal systems, especially constitutional catalogs of fundamental rights– each intervention in the scope of freedom of expression should be subject to careful examination as to its conventional and constitutional legitimacy.
As for the Brazilian case, as stated above, both a significant part of the legal literature and especially, the evolution of the BSFC’s decision practice, has strengthened the position of freedom of expression in the constitutional architecture, assigning it a “prima facie” preferred position “vis-à-vis” other fundamental rights. In the same way, as equally indicated, it is not possible –at the present time– to extract a consolidated position, regarding the definition of hate speech practiced by the BSFC, especially if it is in fact compatible with the repeatedly affirmed preferred position of freedom of expression.
The case of Holocaust denial in itself –at least in principle and compared to the orientation prevailing in the USA– could already indicate precisely the contrary, i.e. that freedom of expression does not have a privileged condition within the long list of freedoms and fundamental rights enshrined in the Brazilian Federal Constitution.
When the most recent case law of the BSFC about the limits of freedom of expression is considered, the impression that there is still not enough clear position of the Brazilian Court regarding the content of so-called hate speech as an abusive manifestation of freedom of speech becomes even more remarkable, even though a preferred position continues to be attributed to freedom of speech.
To illustrate the matter, we present three judgments, two of which are not directly related to the exercise of freedom of expression on the Internet but are fully applicable to it.
In the first case –Investigation 4694/DF, reported by Justice Marco Aurélio Mello and issued on August 28th, 2018–, the First Panel of the BSFC rejected a complaint against a Member of Congress who, during a conference, expressed discriminatory and negative opinions about “quilombolas”[31], indigenous peoples, refugees, women and the LGBT community (lesbians, gays, bisexuals, transvestites, transsexuals and transgenders). The Panel did not consider that the discriminatory content of the statements had been demonstrated, because they were sheltered both by freedom of expression and by parliamentary immunity, as portrayed in article 53 of the Brazilian Federal Constitution.
As regards to freedom of expression, for most of the Justices, although the speech of the defendant in the criminal case concerning “quilombolas” implied a position of superiority, it did not aim at incite acts of repression, domination and elimination, and did not have a discriminatory bias. According to the majority position, the interest in the extinction or reduction of indigenous reservations or lands occupied by “quilombolas” is not the same as the intention to eliminate those minorities. Besides, even the fact that the accused Member of Congress used the term “arroba”[32] to refer to the weight of a person that belongs to the “quilombola” community cannot be considered as a manifestation of a dehumanizing nature, but should, rather, be seen as an unfortunate way of saying that a given person is above the weight considered normal.
Also, as regards to the defendant manifestations on migrants, the First Panel of the Brazilian Supreme Federal Court held that there was no exorbitant manifestation that could exceed a criticism of the government’s migration policy at the time, since not only were there no incitation to xenophobic conduct, but the defendant stated that he did not make any distinction regarding the foreign origin of the immigrant, but rather, in general, to all immigrants.
Furthermore, Justice Roberto Barroso’s had a dissenting opinion on the case, since he had partly accepted the complaint concerning the “quilombolas”, afro-descendants and, also, homosexuals. Justice Rosa Weber also had a dissenting opinion, but she agreed with the divergence raised by Justice Barroso only as regards the defendant’s statements aimed at the “quilombolas”.
At this point, as it can be easily perceived, it is already possible to claim that in the Brazilian case briefly presented the BSFC maintained its case law favorable to a preferred position of freedom of expression, although Justice Roberto Barroso and Justice Rosa Weber shared a dissenting opinion (the latter upheld only in part) to accept the complaint. This circumstance, at least at a first reading, may mean a partial alteration of the opinion of Justice Barroso toward a preferred position of freedom of expression but also –and this appears to us as the most appropriate exegesis (although only Justice Barroso himself can clarify this)– suggest an attempt to maintain an internal coherence between the defense of the preferred position of freedom of expression and his equally firm position (even before becoming a Justice of the BSFC) as to recognizing and protecting minority rights.
Another decision that must be discussed here concerns the Direct Action for the Declaration of Unconstitutionality 2566/DF, judged on May 16th, 2019. The merits of the case involve the analysis of the request for the declaration of unconstitutionality of article 4, § 1, of the Law n. 9,612/1998, according to which it is forbidden to proselytize (i.e. to hold speeches aiming to convert people to a particular doctrine, religion, etc.) within the sphere of community broadcasting media.
The decision, issued by majority opinion and drafted by Justice Edson Fachin, who sustained the thesis of unconstitutionality of that article due to the violation of the article 5, subparagraphs IV, VI and IX,[33] as well as article 220,[34] both of the Brazilian Federal Constitution. According to Justice Fachin, in a precedent-based reasoning, this liberty also covers persuasive speeches, besides the use of critical arguments, and it must be ensured an informed public debate characterized by the free dissemination and exchange of ideas.
Besides this, also according to Justice Fachin, the decision issued on the Ordinary Appeal in “Habeas Corpus” 134.682/BA is applied to the present case, since the claim to assume a universal character –proselytizing speeches– is part of the nature of religions, so that proscribing it would be incompatible with the essential core of religious freedom.
It should be noted that in the latter case, which involves religious proselytizing (but not incitation to physical or moral violence against other religions and their followers), the Justices of the panel of the BSFC, by majority of votes, embraced again the current dominant (despite a few variations among the Justices’ opinions) a preferred position of freedom of expression. Besides, both cases are aligned with a broader notion –as previously stated– of hate speech than the one perceived in the United States, but more restricted than the one adopted on the European Convention on Human Rights.
Nevertheless, there is a shift when freedom of expression is used to attack and even overthrow the structures of the democratic rule of law. This change in understanding is perceived by the decision of the BSFC when it dismissed the Request for Non-Compliance of Fundamental Principles 572 (ADPF 572, in the Portuguese abbreviation), which analyzed the decision of the Brazilian Court to open an investigation (Inq 4781) on fake news (fraudulent news, in a more accurate translation), slanderous accusations and threats against the Court, its Ministers and family members. It is worth highlighting the vote of Justice Celso de Mello, according to whom there would be no point in removing from the Court the instruments that effectively enable the protection of the democratic order, the democratic rule of law and the institution itself. Also, according to the abovementioned Justice, incitement to public hatred and the spread of offenses and threats are not covered by the constitutional clause that protects freedom of speech.[35]
As for the regulation of hate speech on the Internet, although there is still no specific directive or regulation on the subject within the European framework, some instruments have been created for this purpose.
We highlight the measures here adopted in the context of the Council of Europe, to combat racism and intolerance, with the elaboration of Recommendation n. 97/20 of the Committee of Ministers of the Council of Europe specifically on hate speech,[36] in 1997.
In the context of the European Union, in May 2016, a Code of conduct on countering illegal hate speech online was signed by Facebook, Microsoft, Twitter and YouTube. Since then, other companies –such as Instagram, Snapchat, Dailymotion, Jeuxvideo.com, and TikTok– have announced the compliance with the provisions of the mentioned Code.[37] In addition, there is the European Commission Recommendations to Tackle Illegal Content, issued in April, 2018. Currently being edited and processed, we also highlight the Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act) that, among others, encompass social media platforms, last updated on December 15, 2020,[38] as well as the proposal for the Charter of Fundamental Digital Rights of the European Union, which, among other provisions, aims to protect freedom of opinion and the public sphere, also including social media platforms.[39]
Therefore, it is in this context that the controversy regarding the so-called German Network Enforcement Act (GNEA) (“Netzwerkdurchsetzungsgesetz”) is framed. The Act was approved by the German Parliament on September 1st, 2017, with the purpose of restraining and repressing offensive, discriminatory speeches and the incitement to violence on social media platforms.[40] The GNEA is the outcome of an intense reaction to the exponential growth –especially (but not only) due to the German migration policy which, in recent years alone, attracted more than one million migrants, most of them from Syria– of the flow of hate speech online, a measure that, in principle, is in accordance with the German tradition, more strict concerning hate speech, but also more sensitive in reacting to offenses to personality rights in general.
But, despite the motivation of the Act which is itself legitimate, it has drawn much criticism, both in the phase of its elaboration and discussion in Parliament and as regards its application. The controversy on the compatibility of the Act with the German Basic Law, but also with the European Convention on Human Rights (EConvHR) and the European Charter of Fundamental Rights (ECFR), is of particular relevance, especially insofar as it involves restrictions to freedom of expression in social networks.[41]
Since it is not feasible to explore in greater detail the content of the Act and its myriad of repercussions and the questions it arouses, we limit ourselves to emphasize a few of the main aspects that aim to enable greater control toward hate speech and even its interdiction.
Thus, it should be initially emphasized that the GNEA required the implementation of clearer and stricter security measures regarding the injurious and potentially unlawful contents, enabling citizens to maintain a broad control over the material posted.
According to the content of § 1, (1) and (2), of the Act, the GNEA has as its target the enterprises that promote social platforms for profit and have more than two million users in Germany. It should be noted, however, that the Act established differences between providers and does not apply to messaging and e-mail platforms, as well as to platforms designed to publish journalistic and editorial contents.[42]
Regarding its object, the Act requires that unlawful content posted on the abovementioned social media to be deleted and blocked. According to § 1, (3), all contents that correspond to the definitions of crimes mentioned in 23 provisions of the German Criminal Code are considered unlawful, such as those that involve attacks against State security and public order, but also offenses against personality rights.[43]
From this perspective, the GNEA established a dividing line between crimes (criminal offenses) of various kinds on the Web (such as fraud) and the so-called hate crime and fake news. Besides, it should be noted that it is not clear if to recognize the unlawfulness of a certain content, it is necessary that the provider verifies both the subjective and objective factual support, besides the unlawfulness, or, alternatively, if the presence of the objective factual support and the unlawfulness are enough.[44]
From this point of view, the GNEA established an obligation for social media platforms to create a transparent, efficient and permanently available procedure which can be easily understood and handled by users, ensuring that the providers are able to promptly access the complaint and take immediate steps to eliminate or block the challenged illegal content (§ 3, (1)).[45]
According to § 3, (2), no. 1 of the Act, the social media platforms also have the obligation to provide a procedure that enables the immediate knowledge and decision about the removal or blocking of access to allegedly illegal content,[46] implementing the so-called notice and take down procedure, originally foreseen in articles 14 and 15 of Directive 2000/31 of the European Parliament on e-commerce.[47]
Furthermore, social media platforms must immediately inform the users and complainants of all and any measures taken, justifying their decision (§ 3, (2), no. 5, of the GNEA).[48] It should be noted that, as a reaction to this legal provision, the main Internet stakeholders have already begun to institute mechanisms to meet the demand. For example, Google created a specific complaint form,[49]. Twitter added new functions to the users’ accounts,[50] while Facebook created a specific page on which the victim must choose among the options previously supplied and attach the screenshot of the publication.[51]
A first point to be highlighted concerns the fact that, according to the Act, any user can report the content including hate speech. Thus, it can be stated that it was attempted to establish a kind of broader social control over the social networks by their own users. Besides, according to § 3, (2), no. 2 and 3, the Act established a twenty-four-hour deadline after the complaint for the platform to delete or block access to the publication when the latter is clearly unlawful. In more complex cases, it extended the deadline up to seven days, a period that can be granted when “a) the decision regarding the unlawfulness of the content depends on the falsity of a factual allegation or clearly depends on other factual circumstances; in such cases, the social media platform can give the user an opportunity to appeal the complaint before the decision is issued; b) the social platform submits the decision on unlawfulness to a recognized self-regulation institution ... within 7 days of receiving the complaint and agrees to comply with the decision of that institution.”
In cases of non-compliance, fines of up to five million Euros were established (§ 4, (2)).[52]
The Act also establishes an obligation for the social media platforms to elaborate and publish a six-monthly report on the complaints received and respective measures involving the contents considered unlawful (§ 2).[53]
However, as already mentioned, several provisions of the Act have been questioned as to their constitutional legitimacy – in relation to the German Fundamental Law – in addition to a potential incompatibility with the European legal framework in terms of freedom of expression and other human and fundamental rights, whether they be enshrined in the EConvHR or affirmed in the ECFR.
Beyond the alleged formal unconstitutionality of the new legislation, which will not be dealt with here, among other reasons, because it represents an isolated position,[54] here are the most controversial issues, which are not presented here in order of relevance.
A first objection concerns the fact that initially the platforms must deliberate about the offensive potential of the posting, establishing the possibility of a private censorship and a privatization of the enforcement of the Act.[55]
Another relevant aspect concerns the fact, alleged by some, that the German State would begin to indirectly accept, and to a certain extent even encourage, the policy of surveillance and general monitoring performed on social media platforms, although it did not expressly require this kind of procedure from the providers.[56]
Likewise, the broadness of the list of contents that can be considered unlawful is questioned, considering the number of definitions of criminal offences listed to this effect, which are not well-founded. In this regard, there is a proposal of a corrective adjustment to reduce the cases to a few essential offences.[57]
Furthermore, the deadlines set out by the legislator for social media platforms to take actions (to eliminate or block) are too short to enable an adequate examination of their actual unlawfulness. It should also be noted that most definitions of criminal offences listed require an interpretation in the light of the demands for freedom of expression, which, in many cases, is controversial and must be carefully addressed, especially taking into account that, according to the case law of the German Federal Supreme Court, not all offensive contents are an effective abuse of freedom of expression and, in this regard, an unlawful act that is subject to sanction (satires, critique, etc.).[58] Indeed, the same rationale applies to the evaluation of whether some content is an attack on State security and public order, and therefore it is also questionable whether a private actor, especially in such a short time –24 hours when it is manifestly unlawful content (whatever this means, as one may add)– can themselves perform this judgment.[59]
Furthermore, as regards the legal deadline for removing or blocking unlawful content, the Act, as already mentioned above, also provides the possibility of exceptions to which these deadlines do not apply, besides the need for a notification ensuring the possibility of the user to answer the complaint. Anyhow, it is not possible to discuss here whether this satisfactorily removes the abovementioned objections.
Although it is not possible (nor is it intended) to list all the possible observations and conclusions about this matter, it is possible to summarize some aspects that are presented as core points.
A first observation that should be made is that freedom of expression and its limits are still –and possibly increasingly– a very sensitive issue and, to a large extent, connected to positive (international, constitutional, infra-constitutional) law of each legal system, but especially to the dominant conceptions of democracy, tolerance and liberty in general terms.
Nevertheless, despite the obvious differences between the North American, European (in the sense of European Union and Council of Europe), German and Brazilian models, in all those legal systems hate speech is forbidden and can be sanctioned. What varies in each one of these models –and with different consequences– is the comprehension concerning hate speech.
Likewise, there is a variation in how the different legal systems (internal bodies and international entities, and even supranational ones) regulate hate speech. In many cases, there are no specific constitutional and legal prescriptions for this purpose, which –it should be underscored– does not determine, by itself, the legal legitimacy and above all the efficacy and effectiveness of such rules.
Thus, taking the objects of the comparison performed above as a parameter, only Germany, by approving the GNEA, adopted –for now– a legislation specifically aimed at regulating the social networks, without jeopardizing all other available legal sources applicable to such means of communication and to others. That in itself –unless through adequate monitoring of such measures– does not ensure its adequacy and effectiveness, neither does it solve a series of other problems.
This, however, does not mean that the regulation of the content of online free speech is unnecessary or completely useless due to its inefficiency, although there are also those who take this position. Likewise, it is still open to what extent a stronger model of state regulation should be adopted (and eventually also by international entities), or if efforts should be put into the so-called regulated self-regulation or simply if it should be provided full space to self-regulation.
It is in this context that the recent German Act can offer us at least a few clues. Despite the different objections raised about a number of GNEA provisions and also despite some essential adjustments, as well as an interpretation in accordance with human and fundamental rights, particularly freedom of expression, the Act should be mostly well received. In general terms, and among other reasons, since it is compatible with and implements the normative orientation (still as soft law) in the case of Belkacem v. Belgium, as well as the recommendations of the ECtHR.
Particularly welcome is the creation of a model embracing a broad social control by the users of social platforms, as long as it does not enable censorship (including a private one) nor silencing free speech of users. Although we cannot explore further this matter, it is important to be mentioned that those situations are partly already taking place.
Besides, the German legislator sought to institute a model of compliance which, to a great extent, incorporates measures involving the removal and blocking of unlawful contents that already exist, exploring further toward the effective measures, be it by persuasion or by sanctioning.[60]
We would venture to claim that, particularly considering the presence of powerful social stakeholders from the technological and economic point of view, the absence of regulation on hate speech and the lack of minimum effective measures to prevent and sanction it entail the violation of the State’s duty to protect in the sphere of private relations with regards to personality rights, but concerning human dignity above all, as solemnly enunciated in article 1 of the German Basic Law[61] and in Article 1 of the European Charter of Fundamental Rights.[62]
Furthermore, it is necessary to consider, as already mentioned, that the best path to follow is not a closed regulation, but rather –and here we present our view on the topic– a so-called regulated self-regulation,[63] as already established in the GNEA (despite the points to be corrected). Although this position will not be discussed in depth here, it is essential to be emphasized.
As for the role of the Judiciary, linked to the duty to protect fundamental rights, the experiences briefly described (ECtHR, FCCG and BSFC) have shown how much judicial control, although not immune to criticism, besides lacking limits, has been relevant and even indispensable, especially when rights and interests of minorities and vulnerable groups, most affected by the harmful effects of hate speech, are at stake.
On the other hand, possible judicial measures (and regulatory ones, in general terms) taken for tackle online hate cannot imply violation of other human and fundamental rights, due to an unlawful intervention in the sphere of protection those rights, as is primarily the case of the freedom expression and information, to which a preferred position must be ensured, at the risk of jeopardizing the democratic order itself.
In this sense, the underlying perception (although not necessarily explicit) of the mentioned decisions and regulatory measures, namely the GNEA, concerns precisely the risks that hate speech represents to democracy, which was particularly emphasized in the BSFC’s decision in the case of ADPF 572, in which it was highlighted that freedom of speech does not protect speech directed against democracy and its institutions.
Another relevant aspect to consider, at this point, is the lack of boundaries that characterizes the digital environment and the technical difficulties of implementing a stricter control based on a sanctioning model. Only digital inclusion (involving empowerment of users for the responsible use of the internet) and the dissemination of a culture of respect and tolerance, as well as eventually the elaboration of an International Treaty for the Protection of Human Rights on the Internet[64] and a common code of ethics for the internet, may come to have more effective and lasting results.[65]
In this perspective, it is worth to mention the draft proposal that is currently under discussion in the European Parliament (currently containing 18 articles) of the Charter of Fundamental Digital Rights of the European Union, whose article 4, in the version of April 24th, 2018, states[66]:
In any case, the effectiveness of such normative frameworks will also depend on their acceptance and on the indispensable commitment of States and the Internet stakeholders, which will only be feasible –and even so with limits– through a network of cooperation and multi-level political and legal interaction, in a context of a regulated self-regulation of social media platforms.
Resumen: Aunque no es un fenómeno reciente, la incitación al odio se ha convertido en un reto a nivel mundial, con un impacto cada vez más devastador. Esto plantea la necesidad urgente de una regulación adecuada en términos de prevención y prohibición, que debe hacerse tanto a nivel nacional como transnacional. Uno de los principales retos es encontrar el equilibrio adecuado entre la libertad fundamental de expresión y la protección de la dignidad humana y los derechos de la personalidad frente a cualquier tipo de manifestación que pueda considerarse como discurso de odio. Así pues, el objeto del presente texto es extraer algunas consideraciones sobre el fenómeno, así como ofrecer una visión general sobre la recientemente promulgada Ley alemana para mejorar la aplicación de la ley en las redes sociales (“Netzwerkdurchsetzungsgesetz” - Ley alemana de aplicación de la ley en las redes), el ordenamiento constitucional brasileño y el marco jurídico europeo (Unión Europea y Consejo de Europa), ya sea por la jurisprudencia o por los instrumentos para hacer frente a la incitación al odio, especialmente en lo que respecta a las plataformas de medios sociales.
Palabras claves: Libertad de expresión; Discurso de odio; Redes sociales; Regulación.
Abstract: Although not a recent phenomenon, hate speech has become a worldwide challenge, with an increasingly devastating impact. Thus, this places an urgent need for an appropriate regulation in terms of prevention and prohibition, which must be done at national and transnational level. One of the major challenges is to find the proper balance between the fundamental freedom of expression and the protection of human dignity and personality rights against any kind of manifestation that can be considered hate speech. So, the object of the present text is to draw some considerations about the phenomenon, as well as provide an overview about the recently enacted German Act to Improve Enforcement of the Law in Social Networks (“Netzwerkdurchsetzungsgesetz” – German Network Enforcement Act), the Brazilian constitutional order and the European legal framework (European Union and Council of Europe), whether by case-law or by instruments to tackle hate speech, especially concerning social media platforms.
Key words: Freedom of Expression; Hate Speech; Social Networks; Regulation.
Recibido: 20 de abril de 2021
Aceptado: 7 de mayo de 2021
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[1] The first author, Ingo Sarlet, wishes to thank to DAAD – German Academic Exchange Service – for the financial support that enabled him to participate as a speaker at the Biennial Congress of the Centres for European and German Studies held in Berlin, December 2018, where he held a lecture on the topic and started to develop his related studies and publications.
[2] Dr. Iur. at Munich University, Germany. Professor and Chair of the Graduate Program in Law at the Pontifical Catholic University of Rio Grande do Sul (PUCRS). Retired Judge of the State Appeal Court of the State of Rio Grande do Sul and Lawyer.
[3] Dr. Iur. at University Augsburg, Germany. Professor at the Undergraduate and Graduate Program in Law at the Pontifical Catholic University of Rio Grande do Sul (PUCRS). Lawyer.
[4] E. TAKIMOTO, “Até um dia, Facebook,” Jornal GGN, May 4th, 2017. Available at https://www.diariodocentrodomundo.com.br/ate-um-dia-facebook-por-elika-takimoto/. Accessed on March 1st, 2021.
[5] Council of Europe, European Council Recommendation n. 97/20 of the Committee of Ministers to member states on “hate speech”, 1997.
[6] E. THWEATT, “Bibliography of hate studies materials”, Journal of Hate Studies, 2001.
[7] J. WALDRON, The harm in hate speech, Harvard University Press, Cambridge, 2012, p. 5.
[8] U. ECO, O Fascismo Eterno, Editora Record, Rio de Janeiro-São Paulo, 2019.
[9] See F. MICHELMAN, “Relações entre democracia e liberdade de expressão: discussão de alguns argumentos,” in I. W. SARLET (ed.), Direitos fundamentais, informática e comunicação, Livraria do Advogado, Porto Alegre, 2007, pp. 49 ff.
[10] Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz – NetzDG), September 1, 2017, BGBl. I S. 3352. Available at https://www.gesetze-im-internet.de/netzdg/NetzDG.pdf. Accessed on March 1st, 2021.
[11] For a contrast between the European and North American perspectives, in addition to a Spanish overview of the matter, see M. A. PRESNO LINERA, “Del odio como discurso al odio como delito, pasando por el discurso del odio”, in L. E. RÍOS VEGA and I. SPIGNO, Los Derechos Fundamentales en el siglo XXI. Tomo II, vol. XIV, La libertad de expresión en el siglo XXI. Cuestiones actuales y problemáticas, Tirant Lo Blanch, Ciudad de Mexico, 2021, pp. 323-354.
[12] It should be noted that, meanwhile, on July 9, 2019, a new French law was enacted: directly inspired by the German Network Enforcement Act, it obliges the social networks to remove from the internet contents that express hate speech.
[13] On the case of the USA, see, from a general perspective, T. ZICK, The dynamic free speech clause. Free speech and its relation to other constitutional rights, Oxford University Press, New York, 2018; on hate speech, see especially J. WALDROM, The harm in hate speech, Harvard University Press, Cambridge, 2012. From a comparative perspective on the USA and Germany, see, among others, W. BRUGGER, “Verbot oder Schutz von Hassrede?”, Archiv des öffentlichen Rechts, n. 128, 2003, pp. 372 ff. From the same author, see also “Sollte Hassrede verboten oder geschützt werden? Ein Konflikt zwischen Deutschland und Amerika,” in H. MEIER and F. DYCKMANS (eds.), Rechtsradikale unter dem Schutz der Versammlungsfreiheit, Evangelische Akademie, Hofgeismar, 2010.
[14] On this topic, especially on the relationship between freedom of expression and other fundamental rights, see T. ZICK, The dynamic free speech clause, … cit.
[15] See, among others, J. M. PORRAS RAMÍREZ, “El discurso del odio como límite a la libertad de expresión en Europa,” Revista Direito Público, n. 14, 2018, pp. 77 ff. After a general presentation of the topic – underscoring that also in Europe (although more timidly than in the USA), freedom of expression has generally taken on a preferred position – the author shows that, concerning the problem of hate speech, the definition of its content is broader and the protection system stricter.
[16] On this topic, see in Germany (but also looking at the European system – European Charter of Fundamental Rights and European Convention on Human Rights), A. K. STRUTH, Hassrede und Freiheit der Meinungsäusserung. Der Schutzbereich der Meinungsäusserungsfreiheit in Fällen demokratiefeindlicher Äusserungen nach der Europäischen Menschenrechtskonvention, dem Grundgesetz und der Charta der Grundrechte der Europäischen Union, Springer, Berlin, 2018.
[17] See 1 BvR 673/18, Rn. 1-37. Available at http://www.bverfg.de/e/rk20180622_1bvr067318.html. Accessed on March 1st, 2021.
[18] See, among others, H. BETHGE, “Meinungsfreiheit, Art. 5,” in M. SACHS (ed.), Grundgesetz Kommentar, 8th ed., C.H. Beck, München, 2018, especially pp. 329 ff, as well as T. KINGREEN and R. POSCHER, Grundrechte – Staatsrecht II, 34th ed, C.F. Müller, Heidelberg, 2018, pp. 195-96.
[19]“Article 5 ...
IV – manifestation of thought is free, but anonymity is forbidden;
IX – expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license;
X – the privacy, private life, honor and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured; ….”
[20] See I. W. SARLET and A. M. FERREIRA NETO, O direito ao “esquecimento” na sociedade de informação, Livraria do Advogado Editora, Porto Alegre, 2018, p. 77.
[21] Ibidem, p. 77.
[22] See, as an illustration of the position in favor of the preferred position, L. R. BARROSO, “Liberdade de expressão versus direitos da personalidade. Colisão de direitos fundamentais e critérios de ponderação”, in L. R. BARROSO, Temas de Direito Constitucional, vol. III, Renovar, Rio de Janeiro, 2005, p. 103, and also, more recently, D. SARMENTO, “Art. 5º, IV”, in J. J. GOMES CANOTILHO, G. FERREIRA MENDES, I. W. SARLET and L. L. STRECK (eds.), Comentários à Constituição do Brasil, 2nd ed. Saraiva/Almedina, São Paulo, 2018.
[23] Supremo Tribunal Federal, ADPF [Action against the Violation of a Constitutional Fundamental Right] n. 130, Judge-Rapporteur Carlos Britto, en banc court, judged on April 30, 2009.
[24] Supremo Tribunal Federal, ADPF n. 187, Judge-Rapporteur Celso de Mello, en banc court, judged on June 15, 2011.
[25] Supremo Tribunal Federal, ADI [Direct Action for the Declaration of Unconstitutionality] 4815, Judge-Rapporteur Cármen Lúcia, en banc court, judged on June 10, 2015.
[26] See ADI n. 4451/DF, Judge-Rapporteur Alexandre de Moraes, judged on June 20-21, 2018.
[27] See RE n. 1010606, Judge-Rapporteur Dias Toffoli, judged on February 11th, 2021.
[28] Supremo Tribunal Federal. Habeas Corpus [HC] n. 84292/RS, Judge-Rapporteur Moreira Alves, Judge-Rapporteur for appellate decision Maurício Corrêa, en banc court, judged on September 17, 2003.
[29] On the decision, see http://hudoc.echr.coe.int/eng-press?i=003-5795519-7372789. Accessed on March 1st, 2021. For the full decision, see ECtHR (2nd Section), 27 june 2017, n. 34367/14: https://www.doctrine.fr/d/CEDH/HFDEC/ADMISSIBILITY/2017/CEDH001-175941. Accessed on March 1st, 2021.
[30] ECtHR, Beizaras and Levickas v. Lithuania, application n. 41288/15, 14 January 2020. Available at: http://hudoc.echr.coe.int/spa?i=001-200344. Accessed on February 14th, 2021.
[31] Quilombolas (Quilombos, in Portuguese) are communities of black people who are descendants of former slaves, living in areas that originally were used by them as a place of refuge. The Quilombolas, as well as the cultural, religious and the general traditions of afro-descendants are submitted to special protection in the Brazilian Constitution.
[32] The word “arroba” has its origin in Arabic “ar-rub” and consists in a unit of measure used mainly for animals (cattle), but it also had been used throughout the slave commerce.
[33]“Article 5…
IV – manifestation of thought is free, but anonymity is forbidden;
VI – freedom of conscience and belief is inviolable, assuring free exercise of religious beliefs and guaranteeing, as set forth in law, protection of places of worship and their rites;
IX – expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license.”
[34]“Article 220. The expression of thoughts, creation, speech and information, through whatever form, process or vehicle, shall not be subject to any restrictions, observing the provisions of this Constitution.”
[35] See ADPF n. 572, Judge-Rapporteur Edson Fachin, judged on June 18th, 2020.
[36] Council of Europe, European Council Recommendation n. 97/20 of the Committee of Ministers to member states on “hate speech”, 1997.
[37] European Union, European Commission, 5th evaluation of the Code of Conduct. Countering illegal hate speech online. Factsheet, June 22th, 2020. Available at: https://ec.europa.eu/info/sites/info/files/codeofconduct_2020_factsheet_12.pdf. Accessed on February 12th, 2021.
[38] European Union, Digital Services Act, December 15th, 2020. Available at: https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/digital-services-act-ensuring-safe-and-accountable-online-environment_pt. Accessed on February 14th, 2021.
[39] Charta der Digitalen Grundrechte der Europäischen Union. Available at: https://digitalcharta.eu. Accessed on February 14th, 2021.
[40] The content of the Act can be found at https://www.buzer.de/s1.htm?g=Netzwerkdurchsetzungsgesetz+–+NetzDG&f=1. Accessed on March 1st, 2021.
[41] On the topic, see, pars pro toto, presenting a summary of the controversy and referring to the most current and relevant literature, but adopting a substantially favorable understanding, A. LANG, “Netzwerkdurchsetzungsgesetz und Meinungsfreiheit,” Archiv des öffentlichen Rechts, n. 143, 2018, pp. 225 ff. Sustaining the substantial incompatibility, at several points, of the GNEA with the Fundamental Law and European Convention, see, pars pro toto, the opinion of G. SPINDLER, “Legal Expertise Commissioned by BITKOM”, Göttingen, 2017, available at https://www.bitkom.org/noindex/Publikationen/2017/Sonstiges/Legal-Expertise-Official-2-0.pdf.
[42] “(1) This Act shall apply to telemedia service providers which, for profit-making purposes, operate internet platforms which are designed to enable users to share any content with other users or to make such content available to the public (social networks). Platforms offering journalistic or editorial content, the responsibility for which lies with the service provider itself, shall not constitute social networks within the meaning of this Act. The same shall apply to platforms which are designed to enable individual communication or the dissemination of specific content.
(2) The provider of a social network shall be exempt from the obligations stipulated in sections 2 and 3 if the social network has fewer than two million registered users in the Federal Republic of Germany.”
[43] “(3) Unlawful content shall be content within the meaning of subsection (1) which fulfils the requirements of the offences described in sections 86, 86a, 89a, 91, 100a, 111, 126, 129 to 129b, 130, 131, 140, 166, 184b in connection with 184d, 185 to 187, 201a, 241 or 269 of the Criminal Code and which is not justified.”
[44] B. HOLZNAGEL, “Das Compliance-System des Entwurfs des Netzwerkdurchsetzungsgesetzes,” Zeitschrift für Urheber- und Medienrecht, 2017, pp. 614 ff.
[45] “(1) The provider of a social network shall maintain an effective and transparent procedure for handling complaints about unlawful content in accordance with subsections (2) and (3). The provider shall supply users with an easily recognizable, directly accessible and permanently available procedure for submitting complaints about unlawful content.”
[46] “(2) The procedure shall ensure that the provider of the social network:
1. takes immediate note of the complaint and checks whether the content reported in the complaint is unlawful and subject to removal or whether access to the content must be blocked,”
[47] See B. HOLZNAGEL. “Das Compliance-System…,” cit., pp. 614-15.
“Article 14. Hosting.
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.
Article 15. No general obligation to monitor.
1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.” Directive 2000/31/EC of the European Parliament and of the Council of June 8th, 2000, on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’). Official Journal L 178, 17.07.2000, pp. 0001-0016. Available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32000L0031&from=pt. Access on October 30th, 2018.
[48] “… 5. immediately notifies the person submitting the complaint and the user about any decision, while also providing them with reasons for its decision …”
[49] In Google News, there is the instrument called “Send feedback”, in which it is necessary to send a “screenshot.” For further details, see the site of the social network: https://news.google.com/. Accessed on March 1st, 2021.
[50] Regarding Twitter, see, for instance, https://help.twitter.com/en/safety-and-security/report-abusive-behavior. Accessed on March 1st, 2021.
[51] In Facebook, above the news, where there are three dots, the option “Give Feedback on This Post” appears. For further details, see the website of the social network: https://pt-br.facebook.com/. Accessed on March 1st, 2021.
[52] “(2) In cases under subsection (1) numbers 7 and 8, the regulatory offence may be sanctioned with a regulatory fine of up to five hundred thousand euros, and in other cases under subsection (1) with a regulatory fine of up to five million euros. Section 30(2) sentence 3 of the Act on Regulatory Offences shall apply.”
[53] “(1) Providers of social networks which receive more than 100 complaints per calendar year about unlawful content shall be obliged to produce half-yearly German-language reports on the handling of complaints about unlawful content on their platforms, covering the points enumerated in subsection (2), and shall be obliged to publish these reports in the Federal Gazette and on their own website no later than one month after the half-year concerned has ended. The reports published on their own website shall be easily recognisable, directly accessible and permanently available.
(2) The reports shall cover at least the following points: ....”
[54] In this sense, arguing for a formal illegitimacy, see, pars pro toto, H. GERSDORF, “Hate Speech in sozialen Netzwerken”, MultiMedia und Recht, 2017, pp. 439 ff.
[55] About the point, see, pars pro toto, M. SCHRÖDER, “Private, statt administrative Durchsetzung des öffentlichen Rechts”, Die Verwaltung, n. 50, 2017, pp. 309-331.
[56] See, pars pro toto, G. SPINDLER, “Legal Expertise Commissioned by BITKOM”, Göttingen, 2017. Available at https://www.bitkom.org/noindex/Publikationen/2017/Sonstiges/Legal-Expertise-Official-2-0.pdf.
[57] B. HOLZNAGEL. “Das Compliance-System…,” cit., pp. 623.
[58] Ibid., pp. 622-23.
[59] Ibid., pp. 623-24.
[60] B. HOLZNAGEL, “Das Compliance-System…,” cit., pp. 622 ff.
[61]“(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
(2) The German people, therefore, acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.”
[62]“Article 1: Human dignity is inviolable. It must be respected and protected.”
[63] About the topic, see, pars pro toto, W. HOFFMANN-RIEM, “Selbstregelung, Selbstregulierung und regulierte Selbstregulierung im digitalen Kontext,” in M. FEHLING and U. SCHLIESKY (eds.), Neue Macht- und Verantwortungsstrukturen in der digitalen Welt, Nomos, Baden-Baden, 2016, pp. 27-52. As a counterpoint, opting for a dominant model of self-regulation, see, among others, in Brazilian literature, I. A. HARTMANN, “Liberdade de expressão e capacidade comunicativa: um novo critério para resolver conflitos entre direitos fundamentais informacionais,” Revista Direitos Fundamentais & Justiça, n. 12, 2018, pp. 145-184.
[64] In this sense, see the Charter of Human Rights and Principles for the Internet (http://internetrightsandprinciples.org/wpcharter), which, although not binding, can serve as a starting point.
[65] The topic of ethics on the internet is not new and there is already much literature on the topic. See, for example, T. KOENIG and M. RUSTAD, Global Information Technologies: Ethics and the Law, 1st ed., West Academic Publishing, Kindle Edition Global, 2017. Likewise, there are already many codes or regulations published by users and other actors of the Web, including the social networks and research providers.
[66] See https://digitalcharta.eu/.
