Musk's impact on content moderation at Twitter faces early test in Germany

A German law requiring social media platforms to promptly respond to reports of hate speech -- and in some cases remove illegal speech within 24 hours of it being brought to their attention -- looks like it will provide an early test for whether Elon Musk-owned Twitter will face meaningful legal consequences over how recklessly he's operating the company.

Since the self-proclaimed 'free speech absolutist' took over Twitter at the end of October and set to mass sackings and radical policy shifts (including, just this weekend, lifting a permanent suspension on former U.S. President Trump), concern has been riding high among lawmakers and social media users that Twitter could degenerate into a hellscape of low-to-no content moderation under its new staff-liquidating, shitpost-loving billionaire owner.

Thing is, some content moderation laws do apply to Twitter internationally -- and Germany has one: The ‘Enforcement on Social Networks’ law, commonly referred to as NetzDG (an abbreviated version of its full German name), allows for fines of up to €50 million for failures to comply with reports to takedown illegal hate speech.

But given Musk's mass Twitter layoffs -- and a number of notable resignations since he took over, including the departure of the former head of trust and safety, Yoel Roth -- it's not clear how much core content expertise and moderation resource is left in-house to enable it to comply with various existing regulatory requirements falling on the business in international markets like Germany and India.

At some estimates, mere hundreds of employees are left at Twitter out of a prior headcount of around 7,500 following Musk's "hardcore" ultimatum to staff last week.

Entire international offices have reportedly been decimated, attracting some swift attention from lawmakers -- such as in Spain, where scores of staff were reportedly laid off, which led the minister for work to tweet a warning to the company earlier this month about the need to comply with local labor laws (which she followed by saying the labor inspectorate was acting on the case after union complaints).

Staff in Germany have also been among laid-off international employees at Twitter -- with a local union reporting earlier this month that a large number of software engineers had received Musk's notorious 'agree to be hardcore or resign' email late last week. Also last week Reuters reported on remarks by a German government spokesperson -- who said it was watching developments at Twitter with "growing concern."

A specialist IT law firm in Germany, JunIT Rechtsanwälte, has a hearing coming up this Thursday for an injunction procedure against Twitter. It's accusing the company of failing to act on reports of hate speech and remove illegal content as required under the NetzDG law.

The firm's founder and managing partner, Chan-jo Jun, tweeted a "save the date" marker earlier this month -- saying Twitter will have to answer for its failure to act on hate speech reports at the public hearing where he said it would be applying for platformwide injunctive relief.

Under German law a lot can qualify as illegal hate speech -- sharing Nazi symbols or denying the Holocaust, for example -- as it has some of the strictest anti-hate speech laws in the Western world.

So it's clear that if Musk seeks to apply a purely American-centric flavor of free speech across Twitter everywhere -- and/or simply fails to have enough staff working on content moderation and adequately resourced to respond to reports about illegal content -- it puts him on a direct collision course with the German law for starters.

The NetzDG law came into effect in Germany back in 2017 -- and was further beefed up in mid-2020, when the German parliament agreed to put a reporting obligation on platforms that requires them to report certain types of “criminal content” to the Federal Criminal Police Office.

While a further reform of the law, last year, focused on bolstering user rights by dialing up transparency on platforms -- by requiring tech firms to pass details of takedowns to researchers, among other changes.

Although NetzDG has been in force for several years in Germany it has remained a topic of controversy -- with critics arguing its existence has a chilling effect on online freedom of speech by encouraging social media firms to shrink their risk and over-block social media users' content.

At the same time, for years the running content moderation-related joke about Twitter for users of the platform in markets outside Germany wanting a quick escape from online hate that flourished on Twitter in earlier, pre-Musk years -- when its prior leadership allowed a toxic bloom of U.S. white supremacist and neo-Nazi speech via lackluster and inconsistent application of claimed community standards -- was to switch their location to Germany in the settings and get all this toxic speech purged since Twitter was at least complying with Germany's hate speech rules.

It would therefore be rather ironic now if German law is the main (only?) available legal tool to upbraid Musk for dismantling Twitter's content moderation norms right now. (A pan-EU Digital Services Act that's also focused on regulating illegal content takedowns does not come into force until February next year at the very earliest).

That's a big 'if' though. Because one pressing question for international regulators is whether Musk will pay any attention to obeying speech-related laws, or any laws, outside the U.S. (Equally, concern is growing inside the U.S. over Musk-Twitter's compliance with the FTC consent decree -- leading to a 'shot across the bow' statement earlier this month by the U.S. regulator.)

Back in October, the messaging platform Telegram was hit with a couple of NetzDG fines in Germany, totaling around €5 million -- for violations of requirements to provide channels for users to report illegal hate speech and failure to appoint a local representative to be served documents with a legally binding effect -- a level of penalty that seems unlikely to cause Musk any more sleepless nights than he's already getting by having bought Twitter.

Although, on paper at least, the German law does allow for larger penalties for breaches -- which could stack up for an ad platform that's seen major advertisers flee post-Musk takeover, adding to major money worries.

Still, another question international regulators may soon be forced to face is how (or even whether) they're able to collect fines and enforce legal consequences against a 'self-driving' Twitter -- if, for example, Musk pulls all employees out of their markets and leaves no local entities to be served papers.

What's their route to actually enforcing compliance?

One nightmare scenario for international regulators is thus, surely, willful non-compliance by Musk -- leaving them with a choice between letting him get away with publicly thumbing his nose at their rulebooks or being forced to essentially punish local users of Twitter by issuing a ban of the service and trying to block access within their own markets (as much as that's even possible in wealthy regions like Europe where users can use VPNs to circumvent geoblocks, etc.).

Politically a service ban would probably be very unpopular to instigate -- and easily trolled by Musk as outrageous censorship -- putting lawmakers in a bind.

Hence, swiftly tweeted threats from international regulators to ban Twitter (such as the one embedded below) may be shown up as rather hollow, in the coming weeks and months (and beyond … ), if none of these entities can follow through and actually enforce against irreverent rule breakers.

(Another case that looks instructive here is Clearview AI -- which has faced a bevvy of penalties from European data protection regulators in recent months but it's less clear whether any of these fines will actually be collectable as the U.S. firm continues to deny breaching any rules or even that these European laws apply to its business.)

The German court hearing that's looming for Twitter this week is just one early example of unfolding legal consequences of the Musk Twitter takeover. But it looks like one watch -- as much to see how (or indeed whether) Musk-Twitter responds to the court proceeding and legal process as for any parking ticket fines which might ensue if there's a finding of NetzDG hate speech takedown failings.

One thing is clear: Regulators everywhere should buckle up for a bumpy ride as Musk drives the Twitter clown car out of the goldmine.