For the right-wing conservative weekly newspaper young freedom, which keeps playing with conspiracy mythological motifs, it was a hit: “Apparently laughing is forbidden,” reads the headline of an article published last week. YouTube temporarily blocked the channel of satirist Uwe Steimle, who is popular in the right-wing camp. “They accused me of violating some community rules without saying what it was all about,” whispered Steimle.
Just like Steimle, the new right-wing blog “Axis of the Good” had fared just a few weeks earlier. In October, YouTube also blocked two videos of the critical action “Everything on the table”, which puts supposedly suppressed truths about the corona pandemic on stage. The platform generally referred to its community guidelines, which prohibit the spread of false medical information, without explaining exactly which statements in the videos were objectionable. The media lawyer Joachim Steinhöfel sent out injunctions in which he referred, among other things, to freedom of opinion and freedom of science. All videos and channels are now available again.
This also happens again and again to YouTubers who are not interested in supposed conspiracies, but in games, make-up or cake: Suddenly the video is gone – and then they puzzle over what exactly they said or did wrong. Uwe Steimle compared YouTube with the GDR; arbitrary justice prevails on the platform. The director of the state media authority of North Rhine-Westphalia puts it only slightly more diplomatically: It is “borderline that industrial companies alone decide who can make which opinion public”.
Not everyone wants to go to court against a large corporation
The European Union wants to end this situation. A “law on digital services” is intended to subject digital platforms to binding rules when dealing with content. It could be passed in the spring and then has to be implemented into national law. Currently, the German Network Enforcement Act only stipulates that the platforms must remove criminal content. The Network Enforcement Act does not regulate what violates their guidelines without being punishable at the same time, such as the dissemination of false medical information. So the guidelines apply. To a certain extent, the provider enforces its domiciliary rights, as media law expert Christian Solmecke explains. Only a ruling by the Federal Court of Justice restricts this: platforms must inform users before their channel is blocked, tell them the reason for the impending measure and give them an opportunity to comment. The Cologne Regional Court is currently trying to clarify whether the platform did this in the case of the “Everything on the table” video.
However, not every user wants to lead a legal dispute with a branch office of a mega-corporation based in Ireland. The law on digital services should therefore require that the platforms introduce uniform, easily accessible and understandable complaint procedures. Before blocking, they should be able to state exactly what is objectionable in a video, including an easy way to object. They have to process complaints within ten working days – at least that’s what the latter says in the version of a possible legal text that the European Parliament has drawn up. According to his proposal, users should be given “a human contact if necessary” when they submit complaints. The decisions are to be made “by qualified personnel” and in a “not arbitrary manner”. A clear tightening compared to the EU Commission’s proposal, which only requires that the platform handle complaints “promptly” and “carefully”.
Regardless of which position prevails in the forthcoming trilogue between the EU Commission, EU Parliament and member states, it would probably be the end of the black box YouTube. The company, which belongs to the Google group, has apparently already seen this. Last week it announced “new features to improve the Creator Experience”. For example, “timestamps” that indicate at what minute and second a video violates the community guidelines. The platform is thus anticipating a requirement of the planned regulation.
Should freedom of the press “respect” or “apply”?
So is everything good, has freedom of expression been saved from the arbitrariness of the digital corporations? Not quite. A sentence in the EU Parliament’s draft has caused irritation, especially in Germany. It is found in Article 12, paragraph 1.
It says: “In their general terms and conditions, the providers of intermediation services respect freedom of expression, media freedom and media pluralism and other fundamental rights and freedoms as enshrined in the Charter and the provisions applicable to media in the Union.” That doesn’t sound suspicious. However, the culture committee and the legal committee had called for the freedom of the press to be formulated more clearly; that it is not only to be “respected”, but that it applies.
The formulation that has now been adopted could mean that the guidelines of the platforms take precedence over freedom of the press, which means that they can reduce the visibility of legally published articles or block them entirely. The Federal Association of Digital Publishers and Newspaper Publishers and the Association of German Magazine Publishers see this as a threat to the freedom of the press and of opinion on the Internet. Their limits are “the general laws and not narrower general terms and conditions of large digital corporations,” they write in a joint statement. Otherwise, Facebook, for example, could decide whether or not users would see legal press articles about the possibility of a laboratory accident as the cause of corona.
MEP Alexandra Geese, who coordinated the Greens group in the parliamentary negotiation process for the draft law, says she can understand the reservations very well – “that people say it’s better to tell the media about the good, tried-and-tested German legislation and a state-remote media regulator than Mark Zuckerberg decides”. However, it is misunderstood that social platforms are not linear media. In case of doubt, it is necessary for the platforms to limit the reach of populist journalistic contributions and, for example, to be able to provide them with information or a fact check. Otherwise, such content would be “hunted through the net by the millions” and the companies could not do anything about it.
In Germany, the media landscape is still reasonably okay, so it might still be possible to do without such options for the platforms to intervene, “but we are making legislation here for 27 member states”. The EU Commission does not even mention freedom of the press in its draft.
So it looks as if the digital platforms will no longer be able to act as arbitrarily as before, but will retain their sovereign power over the content – at the explicit request of the EU. That should lead to interesting debates.