1  Background

1.1 Wild East

Yesterday I was in a developing country where there are no rules for vehicle production and no road traffic regulations. There were no signs on the roads, but there were always deep potholes. It was the law of the jungle, a few rich people raced over the potholes in large off-road vehicles, while most others drove carefully around them in old, smelly cars. The cars had no license plates or seat belts, there was no MOT, serious hit-and-run accidents were the rule and went unpunished. Total dangerous chaos. From time to time, when there were too many deaths in the newspapers, there were calls for the road not to be a legal vacuum. But there were no laws that took into account the consequences of technological development; it was claimed that the rules against crime from the time before the invention of the automobile were sufficient. If anyone dared to suggest that car manufacturers should be regulated, road traffic regulations passed, MOTs and road police introduced, then the killer argument came: we were a free country, there was free travel for free citizens.

1.2 Civilization

Reminder: it’s called Free travel for free citizens, not Ruthless racing for reckless vandals. In Germany, it is possible to drive without a speed limit, not because we have no rules, but because we have a highly civilized rule-based order in which the regulation of vehicles is closely intertwined with the Highway Code for drivers. For example, manufacturers must install seat belts, and vehicle occupants must wear seat belts. Manufacturers must meet quality requirements for tires, and vehicle owners must drive on winter tires when it snows. People from authoritarian, lawless and despotic systems do not know and understand this. Propaganda can easily denounce compulsory seat belts, compulsory winter tires, etc. as a restriction of freedom.

1.3 Communication

Yes, I am talking about the technical consequences of the internet, social networks, smartphones and so-called artificial intelligence. We do not have highly civilized legislation on this, but rather lawlessness, ruthlessness and impunity prevail - in short, the law of the jungle.

“The internet is new territory for all of us,” said Angela Merkel in 2013, 24 years after its invention. In 2023, another ten years later, the oligarch Elon Musk, together with Russian oligarchs, bought the international and unregulated discussion platform twitter and, under the slogan “free speech”, enforces the monopolist’s totalitarian control of social networks: he alone defines - arbitrarily and non-transparently - the rules of discussion and who gets to see what. Musk has amnestied far-right accounts and the human and technical trolls he promotes are flooding the renamed “X” platform with disinformation, hate and hate speech.

The false promise of “free speech” turned out to be an open attempt to exert political influence, to bring the criminal subversive Donald Trump to power in the USA and to abolish American democracy in favor of a billionaire oligarchy (Project 2025).

The need for action is demonstrated by the initiative Everyone by the lawyer and author Ferdinand von Schirach, who formulated a “Utopia for Europe” with the petition For new fundamental rights in Europe. It proposes one of six fundamental rights articles:

Artikel 4 – Truth Everyone has the right to trust that statements made by the holders of public office are true.

This laudable initiative from the time before Russia’s open war against Ukraine and against the whole of Europe falls short, because corrosive disinformation is a mass phenomenon promoted by the reward mechanisms of social networks and the proposed article on fundamental rights would not even sanction lies by politicians before an election, see [Okhmatdyt Children’s Hospital].

1.4 Freedom of expression

In Germany there is no “free-speech” tradition, but the right to free expression of opinion. After the experiences of the Third Reich, no one should be persecuted or imprisoned for their opinion. But there are limits. Like all rights, the right to free speech is balanced against other rights: the right not to be insulted or slandered, the right not to be suddenly attacked in the street by a political mob, the right to keep confidential information confidential, to protect privacy and to protect the general public. Anyone who reveals military secrets to the enemy cannot invoke freedom of expression.

1.5 Limits on the freedom of expression

Freedom of expression in Germany is restricted by various criminal offenses that serve our peaceful coexistence: Breach of the peace (§ 125), disturbing the public peace by threatening criminal acts (§ 126), endangering the dissemination of personal data (§ 126a), incitement to hatred (§ 130), incitement to commit criminal acts (§ 130a), depiction of violence (§ 131), failure to report planned criminal acts (§ 138), Rewarding and condoning criminal acts (§ 140), unauthorized removal from the scene of an accident (§ 142), misuse of emergency calls and interference with accident prevention and emergency aid equipment (§ 145), violation of instructions during supervision (§ 145a), Violation of professional prohibition (§ 145c), feigning a criminal offense (§ 145d), insult (§ 185), defamation (§ 186), slander (§ 187), inciting insult (§ 192a), violation of confidentiality of the word (§ 201), coercion (§ 240), threat (§ 241), Political suspicion (§ 241a), fraud (§ 263), forgery of documents (§ 267), falsification of technical records (§ 268), unlawful organization of a game of chance (§ 284), participation in unlawful gambling (§ 285), to name the most important.

There are also paragraphs in the Administrative Offenses Act (OWiG) that could impose limits on the arbitrary expression of opinion:

Unauthorized assembly (§ 113):

  1. it is an administrative offense to join a public gathering or not to leave it even though a holder of sovereign authority has lawfully requested the crowd to disperse three times.
  2. the offender who negligently fails to recognize that the request is lawful shall also be deemed to have committed an administrative offence.
  3. the administrative offense can be punished in the cases of paragraph 1 with a fine of up to one thousand euros, in the cases of paragraph 2 with a fine of up to five hundred euros.

However, it is unclear whether this also applies to virtual gatherings.

Public nuisance (Section 118):

  1. it is an administrative offense to carry out a grossly improper act that is likely to harass or endanger the general public and affect public order.
  2. the offense may be punished with a fine if the act cannot be punished under other provisions.

However, it is unclear whether limits on the expression of opinion can be derived from this, as Article 5(1) of the Constitution is not mentioned in the OWiG:

Restriction of fundamental rights (§ 132):

  • The fundamental rights of physical integrity (Article 2 (2) sentence 1 of the Constitution), freedom of the person (Article 2 (2) sentence 2 of the Constitution) and inviolability of the home (Article 13 of the Constitution) shall be restricted in accordance with this Act.

However, it may simply not be necessary to mention Article 5(1) of the Constitution, as the Basic Law does not provide for a right to lie.

These rules date back to a time when there were no social networks, i.e. no reach for non-journalists, opportunities for virtual gatherings, flash mobs and the like.

1.6 Freedom of assembly

There is a difference between private, semi-public and public expression of opinion, or more precisely between private, semi-public and public reach.

While we traditionally protect the freedom of private expression to a large extent (secrecy of correspondence), there are requirements for public expression that are punishable by law: people are allowed to assemble, but only without weapons. An assembly in closed rooms (= limited number of participants) does not have to be registered, but an assembly in the open air must be registered 48 hours in advance due to the potentially unlimited number of participants, with the exception of spontaneous assemblies that are formed on the spur of the moment. The Act on Pacified Districts for Federal Constitutional Bodies defines a “pacified district” for the German Parliament, the Federal Council and the Federal Constitutional Court, in which open-air assemblies are generally prohibited.

These balanced regulations allow freedom of expression and ensure security in public spaces (provided they are applied).

1.7 Freedom of the press

Democracy thrives on the separation of powers: the legislative, executive and judicial branches are separate. In a democracy, the free press assumes the role of the Fourth Estate: public control. This is why there is freedom of the press in Germany: the right of the press to research and publish uncensored and largely unhindered. This right to public reach goes hand in hand with obligations: the duty of journalistic care and neutrality, the duty to separate reporting and commentary:

“The strict separation of information and commentary, which is part of the ethos of all solid papers and broadcasters today, had to be painstakingly re-instilled in journalists in Germany after the Second World War. Objectivity and non-partisanship had been thoroughly eradicated during National Socialism. These principles, however, “are not only desirable ideals, but real necessities in today’s Germany, where subjectivity, addiction to distortion and special interests are constantly looking for ways to express themselves”, according to the “Guide to Good Journalism”, which the Allies published in April 1947 (quoted from K. Koszyk in: Mediengeschichte p.52).” ARD-Alpha

1.8 Media Code of Conduct

The Media Code of Conduct of the Press Council sets out journalistic obligations. But this is only a voluntary commitment, not a legal obligation. And, surprise surprise, there is no obligation to separate reporting and commentary in this press code. The press code only recognizes the separation of advertising and editorial.

1.9 Voluntary

Voluntary commitments are not known to work. They have never even worked for professionals. So how are they supposed to work for untrained amateur journalists, like every twitter user? A few examples as a quick reminder:

1.9.1 BILD

The BILD newspaper was already proverbially known for its “lax” handling of the truth in the 80s, at the latest after Günther Wallraf’s investigations. At the time, the phrase “Mother put child through meat grinder, BILD talked to the meatball” made the rounds. According to Wikpedia, Bild has been the most reprimanded newspaper since the Press Council’s statistics began in 1986, with 233 reprimands up to the first quarter of 2021.

1.9.2 Spiegel

“In 1956/1957, around ten years after the magazine was founded, Hans Magnus Enzensberger wrote a critical analysis of The Language of Der Spiegel, in which he put forward a number of theses: The German news magazine was basically not a news magazine, since it clothed its information content in the form of “stories”, Der Spiegel did not practice criticism, but its surrogate, the reader of Spiegel was not oriented, but disoriented” Wikipedia.

If “time-honored” press organs such as Der Spiegel, which are regarded as pillars of democracy, forgo the most objective reporting possible in favor of captivating stories, what about “press organs” that clearly pursue the goal of manipulating their readership in favor of certain political actors? What about actors who shamelessly spread malicious lies with a wide reach in order to destabilize our society and enforce harmful narratives?

1.9.3 Nius

Take Nius, for example, a right-wing populist and right-wing conservative online medium for which the Medienanstalt Berlin-Brandenburg (MaBB) is now (February 2024) examining whether a supervisory procedure needs to be initiated Wikipedia.

Take, for example, the East German “journalist” Ralf Schuler, who wrote for the recorder newspaper “Neue Zeit” in the GDR, for the tabloid “BILD”, a book with the unscrupulous title “ Let’s be populists: Ten Theses for a New Culture of Controversy”, and another book in which he spreads the ‘opinion’ it is also necessary to discuss ‘alternative causes of warming’ for climate change. The Nius contributor Schuler turns the conspiracy theorist manipulation technique “Just asking Questions” into a routine at Nius by twisting the Spiegel motto “Say what is ’ into ’Ask what is ”.

1.9.4 RT

RT (until 2009: Russia Today) is a foreign television program founded and financed by the Russian state in 2005, which is broadcast on the Internet and via satellite transponders. Through targeted disinformation and propaganda, it has helped to deceive the world public about the intentions of the Russian regime and to prepare the war of aggression against Ukraine: Ukraine did not even exist, the non-existent Ukrainians were Nazis, their desire for freedom was financed by the West, Russian-speaking Ukrainians were Russians and were being persecuted in Ukraine, NATO was attacking Russia, Russia had to defend itself, etc.

On March 2, 2022, a ban on any broadcast of RT content came into force across the EU to prevent the spread of lies about the Russian invasion of Ukraine.

1.10 Laymen

If full-time journalists adopt a lax press code and abuse press freedom as rights without responsibilities, what about the non-trained casual writers who can reach a mass audience thanks to the technological revolutions of the internet, social networks and smartphones?

1.11 Malicious actors

Russia is waging hybrid war against free Europe. Russia is waging a brutal war of aggression from the outside against the defensive wall in eastern Ukraine. Russia is spying and sabotaging throughout the EU. And Russia is trying to discourage and divide democratic societies from within and destroy them with extremist parties such as the AfD and the BSW. Russia’s strongest weapon is corrosive disinformation.

1.12 Firehose of Falsehoods

Russia is industrializing the spread of pro-Russian disinformation

  • by professional actors such as Bernd Höcke and Sahra Wagenknecht in high-reach formats such as talk shows
  • through multipliers and useful idiots in social networks
  • by troll factories with fake accounts in social networks
  • and increasingly by bots automated by artificial intelligence
  • supported by fake witnesses (e.g. Alina Lipp)
  • supported by manipulative sources (e.g. anti-Spiegel)
  • supported by fake press websites (doppelganger campaign)

The goal of the Firehose of Falsehoods propaganda technique is to flood the public with many different narratives through as many communication channels as possible, so much, so fast, that

  • the democratic public gives up trying to form its own picture of the truth by evaluating information and thinking for itself in an enlightened way
  • so that one of the oft-repeated Russian lie narratives remains in the memory all the more easily and is remembered as true
  • to distract from the truth and the necessary defense of freedom

1.13 Interim conclusion 1

Under the guise of freedom of the press and freedom of opinion, malicious actors are using disinformation to undermine our free democratic order. Are we decadently standing idly by or are we resilient and fighting back? Do we allow liars, agitators and haters to gather on our communication channels and threaten and persecute peaceful, committed citizens and incite extremist parties? Do we continue to allow the lawless conditions on our communication channels or do we do what we have done so successfully with roads and cars: create a highly civilized rule-based order that allows for fact-based opinion formation again, which should be the basis for free speech. BILD’s slogan “Your opinion” should not be violently blown into people’s brains in a storm of disinformation, but rather developped in a completely civilized educated manner, based on reliable sources, without lies, manipulation or even threats.