Germany: Still Too Much Free Speech, Says the European Commission Against Racism and Intolerance

The European Commission against Racism and Intolerance (ECRI) recently published its sixth monitoring report on Germany. Even though Germany has some of the most repressive hate speech laws in Europe, ECRI decided that, according to it, Germany is still not doing enough.

Never heard of ECRI? Here are a few words by way of introduction:

ECRI, which describes itself as “independent” is the human rights monitoring body of the Council of Europe — not to be confused with the European Union. The Council of Europe is composed of 47 member states, including all of the 27 European Union member states. Its decision and policy making body is the Committee of Ministers, made up of the foreign ministers of each of the member states. Its most famous body is the European Court of Human Rights. The Council of Europe, unlike the EU, cannot make binding rules on its member states. Last year it celebrated its 70th anniversary. The Council of Europe calls itself the “continent’s leading human rights organization… All 830 million people living in this common legal space have an ultimate right of appeal to the European Court of Human Rights”.

ECRI was founded in 1994 by the heads of state of the 47 members of the Council of Europe. According to its 1997 Annual Report:
“The mandate of ECRI, as determined by the Heads of State and Government, is: to review member States’ legislation, policies and other measures to combat racism, xenophobia, antisemitism and intolerance, and their effectiveness; to propose further action at local, national and European level; to formulate general policy recommendations to member States…” (page 3)

“ECRI is composed of members designated by their governments (one for each member State of the Council of Europe) on the basis of their in-depth knowledge in the field of combating intolerance. They should have high moral authority and recognised expertise in dealing with racism, xenophobia, antisemitism and intolerance. ECRI’s members are nominated in their personal capacity and act as independent members.” (page 7)
Since 1994, ECRI has been monitoring Council of Europe member states to ensure that their policies and legislation adhere to the stated goals of the heads of state of the Council of Europe.

At the 1997 Strasbourg Summit, the member states of the Council of Europe,
“… reiterated their aim of achieving a greater unity between the member States in order to build a freer, more tolerant and just European society, and called for an intensification of the fight against racism, xenophobia, antisemitism and intolerance”.
Nearly three decades later, Europe has a large web of hate speech laws and policies, thanks in part to the efforts of ECRI — an unelected body — and the Council of Europe.

According to ECRI’s website:
“In the framework of its country monitoring work, ECRI examines the situation concerning manifestations of racism and intolerance in each of the Council of Europe member states. ECRI’s findings, along with recommendations as to how each country might deal with the problems identified, are published in country reports. These reports are drawn up after a contact visit to the country in question and a confidential dialogue with the national authorities. The country monitoring deals with all member States on an equal footing and takes place in five-year cycles, covering nine/ten countries per year”.
Work on the sixth round of the ECRI reports started at the end of 2018.[1] The sixth round country reports focus on three topics common to all member States: (1) Effective equality and access to rights, (2) Hate speech and hate-motivated violence, and (3) Integration and inclusion.

ECRI’s sixth report on Germany was published on March 17, 2020. In it, ECRI does not disguise what can hardly be described as anything other than a political agenda.

ECRI notes as a “welcome positive development” and a sign of “progress” that, among other things:
“Germany warmly welcomed an extraordinarily large number of asylum seekers in 2015. The Chancellor and ministers publicly spoke out against hate speech and called on social networks to enforce their guidelines on removing hate speech”.
Nevertheless, according to ECRI, “Despite the progress achieved, several issues give rise to concern”.

The article focuses on ECRI’s “concerns” regarding Germany’s measures against “hate speech”:

Although Germany’s hate-speech regulations are among the most repressive in the European Union, “ECRI regrets to note that German public discourse has become increasingly xenophobic in recent years, and that hate speech has become more common”.
“Against this background, ECRI highlights very positively that many Germans warmly welcomed, on the initiative of the Federal Chancellor, the extraordinarily large number of about 890 000 asylum seekers who arrived during the autumn of 2015. This ‘welcome-culture’ mobilised hundreds of thousands of individuals who contributed to accommodating and assisting the new arrivals, many of whom were refugees from Syria”.
ECRI laments that:
“Other parts of the population, however, showed concern about the wave of migration. Hostile and xenophobic attitudes increased and the public debate worsened. The political party ‘Alternative for Germany’ (AfD)…took a strong position against migration… Issues such as the investigation of large numbers of complaints of sexual assault and theft after the New Year’s celebrations of 2015/2016 in Cologne and the suspicion that many asylum seekers were among the suspects, sparked a huge public debate, affected the general sense of security and contributed to increasing islamophobic and xenophobic sentiments and hate speech. Repeated public and media attention to other offenses allegedly committed by asylum seekers, the attack by an Islamist terrorist on the Berlin Christmas market on 19 December 2016 and other similar attacks in neighbouring countries further amplified fears, xenophobia and racism. The AfD gained 12.6% of the vote in the 2017 federal elections and, for example, 15.1% in the elections in Baden-Württemberg, 20.8% in Mecklenburg-Western Pomerania and 24.3% in Saxony-Anhalt”.
ECRI suggests that:
“… action is required in several areas to effectively prevent and combat hate speech. These encompass awareness-raising, prevention and counter speech, support to victims, self-regulation, the use of regulatory powers and, as a last resort, criminal investigation and punishment”.
ECRI considers that “there is a lack of a sufficiently robust and dense network of counselling services for victims [of hate speech]. Equality bodies should be given a clear mandate, the necessary competences and resources to assist victims of hate speech”.

ECRI notes with satisfaction, however, that:
In March 2017, the German Press Council changed… its Press Codex and published guidelines for its interpretation following a public debate on the media coverage of events that involved criminal offenses possibly committed by foreigners and in particular the assaults on women on New Year’s Eve 2015/2016. Guideline 12.1 of the Press Codex now states that the affiliation of suspects to ethnic, religious or other minorities should normally not be mentioned, unless there is a well-founded public interest”.
ECRI also “recalls that such information should only be disclosed by the police if it is strictly necessary and serves a legitimate purpose”.

ECRI then goes on to commend Germany for introducing the controversial 2017 censorship law, known as NetzDG, which requires Facebook to remove content within 24 hours or face fines of up to 50 million euros. ECRI legitimizes the law, saying that:
“the restrictions imposed by the NEA [Network Enforcement Act] can be considered as necessary in a democratic society… in particular to protect the reputation and the rights of privacy and honour of the persons exposed to hate speech… and to prevent disorder and crime”.
ECRI, nonetheless, evidently does not think that the censorship law goes far enough.
“ECRI also regrets that there is no mechanism in place that would ensure that social networks systematically transfer criminally relevant content and the related evidence to the police and prosecution. Thus, the general preventive effect of the prosecution and sentencing of hate speech cases cannot fully develop and further contribute to the elimination of online hate speech… ECRI recommends that the German authorities standardise access to, and rules for, reporting hate speech on social media, ensure that evidence of online hate speech is preserved and transmitted to the law enforcement authorities and develop ways for the police and prosecution to close new channels for the dissemination of hate speech online”.
Germany has in fact already followed at least some of ECRI’s recommendations:

In October, the government announced that it was working on introducing legislation that among other things, obliges online service providers such as Facebook, YouTube and Twitter not only to delete hate speech within a certain time frame, but to report hate speech to German authorities, and also to forward the IP address of the social media user suspected of hate speech. The German government approved the bill in February and it is now awaiting the approval of the Bundestag, Germany’s lower house of parliament, and the Bundesrat, the upper house of parliament.

ECRI also pushes its agenda on the media, stating:
“ECRI is pleased to note that the new National Action Plan on Integration will have a chapter on media. ECRI encourages all stakeholders involved in its revision to develop measures that help curb the spread of hate speech and avoid messages that unintentionally trigger racism and xenophobia”.
Finally, ECRI “strongly welcomes the German government’s implementation of its recommendation [in ECRI’s fifth report on Germany] to introduce into the law an obligation to discontinue the public financing of political parties and other organisations that promote racism” and recommends that such a procedure against the Alternative für Deutschland (AfD) party be examined.

Since 1994, ECRI has been dispensing its highly politicized recommendations to European governments in confidential government consultations removed from public scrutiny. Only the final reports are published.

As this kind of arguably undemocratic governance, where an unelected body of “experts” tells national governments how to govern on fundamental issues such as freedom of speech, has been ongoing for several decades now, one can only assume that either Europeans approve of these measures or are entirely ignorant of them.
Judith Bergman, a columnist, lawyer and political analyst, is a Distinguished Senior Fellow at Gatestone Institute.

[1] The country reports of the first round were completed at the end of 1998, those of the second round at the end of 2002, those of the third round at the end of 2007, those of the fourth round in the beginning of 2014, and those of the fifth round at the end of 2019. Work on the sixth round reports started at the end of 2018.