„How to fight crime on the internet and to protect privacy and civil liberties“

Anfang 11. Februar 2022
Redner Dr. Marco Buschmann

I’m delighted to be able to join you today. What a wonderful tradition LSE’s “German Symposium” is – and has been now for over two decades.

And I am also delighted to be part of a gathering – even if only virtually – that you yourself have defined as a contribution to a new start in British-European relations after Brexit!

No matter what the current legal relationship is between the continent and the United Kingdom: England, and the UK, are still the role model in the world, above all for liberals such as myself. The vigilant and self-confident Parliament, the Magna Carta, the great liberal minds of John Locke, Adam Smith, David Hume and John Stuart Mill – the words and ideas that shape us in the West today, that shape us Germans, and which we read with the greatest enthusiasm – they come from England, from Scotland, from Wales and from Ireland! I shouldn’t forget to mention Edmund Burke, a Dubliner.

Yet it may surprise you to learn that one particular great Englishman in fact originated from Hamburg: Ralf Dahrendorf – Member of the House of Lords, Baron Dahrendorf, of Clare Market in the City of Westminster. Clare Market, I believe, is a square nearby your campus – although I hear it also serves as a car park nowadays ... But it also gave its name to the former student and Director of LSE, Ralf Dahrendorf.

He was a member of my party, the Free Democratic Party, later joining the Liberal Democrats. For me, he is a liberal role model, who truly understood freedom in all its facets. He insisted that freedom should not remain merely a privilege of a well-off minority. Instead, there must be opportunities for all! "Education is a civil right", those were his words!

And Dahrendorf brings us neatly to the topic of today’s discussion. He taught us – us Germans above all who needed to hear it, and still today need to hear it: That conflict is a vital part of any open society and of any liberal democracy.

Society is conflict. Conflict; argument and opposition; voicing an opinion, contradicting an opinion – these are what keep society and democracy open and capable of developing. And it is through liberal democracy that we can profit from conflict. There is no change, no progress without conflict. History is open, the world and truth are uncertain, the presumption of superior knowledge is never anything more than just that: a presumption!

In the words of Dahrendorf: “It is not some utopian synthesis,” he said, that is the defining feature of a humane and liberal society capable of development, – but rather, “the contradictions of norms and interests simultaneously overcome and preserved, all within the rules of the game.” (1961)

Long before Dahrendorf, Kant also came to this realisation, and formulated it even more strikingly than we might have expected from him: “Man desires concord; but Nature knows better what is good for the species: she wills discord.” (1784)

Which brings me to the first point I wish to make: Dahrendorf teaches us to view conflict with a certain calmness – and to exercise caution in using words like "divided" when we see differences of opinion in our societies today. Indeed, there are some who seek to divide society – but the mere existence of different points of view, or even fundamentally different stances, is simply a fact of life in any liberal democracy.

Of course: There are also conflicts and elements of radicalisation that we must actively counter. But we must do so in ways that respect the rule of law and uphold freedoms.

As Minister of Justice, and therefore minister for the German Constitution, I can give a short and sweet answer to the question of this keynote, “How to fight crime on the internet and to protect privacy and civil liberties”: Well, by protecting our Constitution, the Basic Law!

It formulates standards for judging, prosecuting and punishing, whenever freedom begins to destroy freedom – and it defines, conversely, where state action must end in order to preserve individual freedom. This is the German understanding of constitutional law, shaped by the past: by the Nazi dictatorship, but also by the state terror of the GDR. Hence the scepticism of the German Constitution, including towards the legislature.

This is quite different from the British tradition of the primacy of parliament.

We have constitutional rules that bind the legislature, and that hold up legal stop signs. Parliament must justify itself before the constitution. Judges can repeal laws.

So, given these constitutional structures, I say: One does not protect the liberal legal order by abolishing civil liberties. The freedom of expression forms the very core of liberal democracy. One does not defend liberal democracy by calling fundamental rights into question.

And we contended precisely that – time and again – as the liberal opposition in the German parliament in recent years. Now, as part of the government, and as Minister of Justice, my party and I have the opportunity to shape politics in this spirit.

In the coming years, we will strengthen citizens' rights, in both the analogue and digital worlds.

We want, for example, to create an individual right to encryption for online interactions. The goal is: to protect citizens’ privacy through digital technology. And to ensure the right to anonymity in the public sphere – and that includes the internet.

We will call for stricter legal rules and conditions on the State’s practice of installing malicious software on citizens’ devices, or what we call "State Trojan horses".

We will put an end to the current practice of data retention as permitted by German law, as we consider it to be a disproportionate encroachment on fundamental rights: It affects perfectly innocent users, and can create the feeling – as the European Court of Justice has put it – that our private lives are subject to constant surveillance.

We will look at all relevant laws and draw up a comprehensive balance sheet on the use of surveillance, with a focus on implications for fundamental rights: We want to gain an overview of the technical and legal possibilities for surveillance – including an assessment of what added value they bring for security.

We will therefore be firmly guided by the principle: That any encroachment on civil rights requires a substantial, sound and evidence-based justification.

Right now in Germany, we are concerned about the role of platforms and social networks in what we see as an increasingly toxic political atmosphere: Hate speech, death threats, violent propaganda, calls for threatening gatherings designed to intimidate politicians, scientists or journalists.

To make my perspective on the topic of this keynote a little more concrete, I would like to give you a brief overview: Of the problem as it stands, the existing legislation and plans for legislation, of the legal situation and of law enforcement efforts.

But I want to make one thing clear first: It very much is possible to pass legislation for the internet and to enforce the law online – and to do that in a liberal spirit!

In Germany, we passed a law regulating social networks in 2017: The law obliges online platforms to remove content reported to them within 24 hours if it is obviously illegal, while for other illegal content, a deadline of seven days applies.

I will let you know straight away that I see a problem with this legal provision from a liberal point of view: It carries the risk that social networks will take a cautious approach and might prefer to delete too much than to be sanctioned for deleting too little. As a result, we are handing over even more power to private companies, which are already powerful enough, by allowing them to decide where the limits of freedom of expression lie.

But that is the law as it stands. And it also applies to services like Telegram, which is cause for concern at the moment as it is being used by right-wing extremist groups and instigators of violence. Telegram is not just a messenger service. It also features open channels, some of which with more than 100,000 users.

Social networks are required by law to name a contact person in Germany and to set up an easily recognisable channel for reporting criminal content. Telegram does not comply with these requirements. We are endeavouring to enforce this, but this is not proving easy with a service whose headquarters are located in Dubai. So we are left with the question: Where do we serve requests and notifications? Here we see the limits of what can be achieved by the territorial nation state alone.

So we are now also counting on Europe. Hate speech on the internet is a phenomenon that affects the whole of Europe. That is why we are currently negotiating much-needed European rules for social networks with the Digital Services Act, the DSA.

The DSA will also impose obligations on messenger services if content can be publicly disseminated there and the service is deemed equivalent to a social network – for example, there will be an obligation to designate a single electronic contact point in one of the EU Member States in order to enable direct communication with the supervisory authorities.

The Act therefore attempts to reconcile digital globalisation with the traditional principle of territoriality: It requires that the enterprise appoints a person authorised to receive service. That would provide the basis for what is currently lacking in this area: in short, law enforcement and convictions.

And that brings me to the second aspect: There is no shortage of legal instruments to tackle this phenomenon. Insults; the approval of serious criminal offences; the threat of serious criminal offences; the dissemination of so-called enemy lists: All this is already punishable under current German criminal law. And such offences are usually successfully prosecuted.

What is needed now is more intense prosecution on the internet, for example through online patrols. Just as in our public spaces in the analogue world, the police must also be present in public spaces online – and must intervene wherever the law is violated there.

And law enforcement in Germany will become more intensive. Just a few days ago, a central reporting office for criminal content on the internet began work at the Federal Criminal Police Office. This office receives notifications of hate speech and incitement on the internet, and forwards them to the responsible law enforcement agencies.

The social networks themselves also have a responsibility. The DSA will oblige larger online platforms to report criminal offences. At the same time, the platforms will not be liable for illegal posts, as long as they are not aware of their content. I still believe that this principle of “notice and take-down” is the right approach, and in a way it has become one of the basic principles of the internet. What the proposed DSA now does is to formulate clear procedures for removing such illegal content.

As important as all these efforts are, there is just one catch. After their accounts were deleted on other platforms such as Facebook and Instagram, certain right-wing extremist groups have now simply migrated to Telegram. Unfortunately, there will always be such attempts to get around the rules.

Problems that originate in the analogue world cannot be eliminated by merely banning them from being articulated on the internet.

There is no substitute for engaging in a difficult debate; we have no choice but to stand up for freedom and human dignity. And we need to gain a better understanding of how and why people are radicalised on the internet. We still know too little about that. For that reason, my ministry has commissioned several research projects on this issue.

“How to fight crime on the internet AND protect privacy and civil liberties” – I want to consider the word “AND” in that sentence. The fight against hate speech – and this is important to me – does not mean to restrict the freedom of expression, rather it is to defend the freedom of expression!

Threats and aggressive insults are intended to intimidate people, to silence them, to exclude them from the places of public discourse. To take action against this is to protect civil rights and to protect free and open discourse! So in that sentence, I think we need to add the word "thereby": “How to fight crime on the internet and THEREBY protect privacy and civil liberties”.

Yet there is also another reason why the State is tasked with ensuring extensive protection for the freedom of expression: Time and again, we are seeing free speech come under pressure from society itself – a pressure on dissenting opinions, or a pressure to conform.

The majority, or even what merely appears to be a majority, can be very intimidating. Liberals like Alexis de Tocqueville and John Stuart Mill observed this in the 19th century. And the intimidation of minority opinions, even if many of us find them absurd, is something humankind cannot afford.

John Stuart Mill outlined this traditional justification for the freedom of expression most lucidly in his essay “On Liberty” (1859): There is no such thing as a fundamentally superior standpoint from which one could – in possession of the truth – definitively judge the reasonableness or unreasonableness of all others. And indeed, history has shown us just that. We are only able to get closer to the truth by listening to all opinions – even if it is only one single person that holds a dissenting opinion.

In his book on free speech, Timothy Garton Ash formulated this several years ago in respect of our digital age. He recommends what he calls “robust civility”: Growing a thicker skin; Being less easily offended; Tempering our sensitivities, so as not to stifle freedoms – to overcome a crouched and fearful atmosphere of communication that constricts public discourse. And he recommends that hate speech should always be opposed with counter-speech, not just with prosecution!

That is another strength where we can always learn from the British, who, through early debating classes, are so well versed in the art of argument and opposition.

And so, on that note, I look forward to your rebuttal in our discussion, and to debating with you!