3 Communications law

The previous explanations have shown that our legal system must and can react to technical progress. This applies to modern, technology-based communication just as much as it does to road traffic.

3.1 Classification

In the legal assessment of speech acts, a rough distinction must be made between the following terms

False statement (misinformation)
Lie (disinformation)
Incitement (bullying, incitement to hatred)
threat
Approval of criminal acts
Incitement to commit crimes
Supporting criminal acts (for example by publishing private addresses)
Blackmail

Some of these offences are adequately sanctioned by law (e.g. blackmail), some are not adequately prosecuted (e.g. incitement to hatred), and one is wrongly not even punishable: lying.

3.2 Definition of a lie

Disinformation (colloquially ‘lie’) is defined as misinformation (colloquially ‘false statement’) spread with malicious intent.

3.3 Duty to be truthful

Like the law, truth is a valuable commodity. We spend a lot of money on institutions that research and teach the truth.

Lying is not covered by freedom of expression. A lie is not an opinion. Anyone who now cries out, whether from the liberal or totalitarian corner, should be reminded that the eighth of the ten commandments outlaws lying. “Thou shalt not lie” applies not only to Christians who follow the ten commandments, but to everyone, as this principle is also enshrined in German law on several occasions. Witnesses in criminal proceedings, for example, are generally obliged to tell the truth, otherwise they are liable to prosecution (§ 153 StGB). Section 13 SG (Soldiers Act) also stipulates that a soldier must tell the truth in official matters. This also applies to judges in Germany (Section 38 of the German Judges Act).

Outside of these special domains, however, lying is not sanctioned, because before the invention of social networks and the spread of smartphones, spreading news and opinions was reserved for professionals, mass public lying was not an issue, just like heaps of traffic accidents before the spread of the automobile.

3.5 Common goods

In Germany, damage to common goods is of course punishable by law, ranging from water pollution (§ 324), soil pollution (§ 324a), air pollution (§ 325) to public intoxication (§ 314). The communication space in Germany, on the other hand, can be polluted with impunity and the truth made unrecognizable: our investments in education, schools, universities, adult education centres and public broadcasting (PSB) can still be destroyed by spreading disinformation, not even the poisoning of public discourse and our elections by hostile propaganda lies is punishable by law.

3.6 Public lies

While lying in private may still be tolerated as an “expression of opinion” or even praised as “social competence”, this no longer applies to the mass technically amplified lies in the public sphere. This means that we must face up to the task of regulating communication in the public sphere just as efficiently and civilly as we regulate road traffic.

3.7 Example of elections

I see time and again that people are of the opinion that lying cannot be sanctioned because it would undermine freedom of expression. Here is a simple motivating counter-example: the lies of political parties before elections.

It is indeed difficult to force a party to implement its election promises in government. We cannot fundamentally prevent pre-election lies. But there is absolutely no reason to allow parties to engage in modern target group marketing. If parties are allowed to make different and ultimately contradictory election promises to different groups of voters, this is not just an invitation to electoral fraud: with contradictory election promises or political priorities, electoral fraud is inevitable. Instead of promising everything to everyone, parties should draw up a uniform election program and use it to promote themselves to everyone.

Target group marketing before elections can simply be banned, controlled and sanctioned, with fines and, in the worst case, exclusion from the election. This does not harm our democracy, but on the contrary, benefits it through transparency and the parties’ efforts to create sensible election programs.

3.8 Lie or truth

How do we distinguish the - legally relevant - lie from the truth without opening the door to censorship and arbitrariness? First of all, by choosing a general definition, similar to the formulation of fundamental rights, which is then differentiated in laws and regulations: a statement is a lie if it is obviously false (misinformation) and is obviously spread with malicious intent (disinformation).

There are statements that are obviously lies in this sense and without further laws and regulations, e.g. “the Holocaust did not take place”. The truth of many statements is easy to verify with general knowledge that has coagulated in Wikipedia. Some statements require more work to verify because several sources have to be considered. Conveniently, trustworthy fact-checking organizations have already done this work for us:

3.9 Catalogs of lies

The East Stratcom Task Force, a team of experts from the EU’s diplomatic service with a background mainly in communications, journalism, social sciences and Russian studies, operates the internet service euvsdisinfo.eu. Part of the website is a database with (August 16, 2024) 17,400 refuted lies from Russia’s disinformation campaigns. Anyone who deliberately spreads one of these lies should be sanctioned.

3.10 Deliberate lying

What if someone does not know that they are spreading a lie? In general, the principle “ignorance is no defense against punishment” applies. Someone who publicly disseminates statements, journalist or not, can be expected to do some research to ensure the truthfulness of their statements.

However, if you only want to punish people who know beyond doubt that they are lying, there is a simple procedure: you tell the person that they have made a false statement, citing reliable sources. If the person repeats this statement in the same or a similar way, i.e. in contradiction to the source provided, then they are deliberately lying. With this method, 99% of troll accounts in social networks could be shut down in a simple way without restricting the communication of honest citizens. Quite the opposite: without the troll garbage, the exchange of ideas becomes freer, undisturbed and more productive, just as road traffic improves when there are no hooligans on the streets.

3.11 Dimensions of the lie

The punishability of a lie depends on many factors (or dimensions): the severity of the lie, the frequency of the lie, the consequences of the lie and so on. To punish the lie means, mathematically speaking, to define a mapping function from this multi-dimensional space of lies to the level of punishment. I am not claiming here that it is possible to create a set of rules that precisely separates and evaluates the lie from the truth for each individual case and assigns an appropriate punishment (or leaves it unpunished).

What I am arguing, however, is that in this multi-dimensional space of lies, there are regions where it is very clear that we are dealing with serious and punishable lies. For example, we don’t have to allow masses of anonymous maliciously programmed AI-driven bots to clog up our lines of communication with distraction, hate and hate speech.

I also believe that the general public would benefit from sanctioning wide-ranging malicious lies. Just as we benefit from the fact that not everyone parks their car somewhere, e.g. in front of a fire lane, and therefore a burning house cannot be extinguished.

The amount of the penalty should be a function of the following factors of a statement:

Penalty = f(Degree of falsehood, Degree of insistence, Frequency, Severity, Degree of mass, Degree of victimization, Degree of expertise, Liar-Score)

3.11.1 Degree of falsehood

The truthfulness of a statement can often be clearly stated as 100% (true) or 0% (false), in the case of incomplete information as a plausibility between 0% and 100%. The degree of falsehood is simple

degree of falsehood = 1 - truth content

3.11.2 Degree of insistence

If a person has repeated a lie despite being instructed, we code 100%, if there is no repetition, we code 0%, for statements that overlap with an instruction, with a number between 0% and 100%.

Publishing with the comment function switched off and malicious misunderstanding is coded with a high degree of insistence even without repetition.

3.11.3 Frequency

Troll and spam accounts typically repeat their lies very often. This is much cheaper than fabricating customized lies for individual cases. Therefore, the frequency of a lie is a useful feature in determining the level of penalty.

3.11.4 Severity

Some lies have no negative consequences; they may be unsightly but do not require sanctions. The statement “all swans are purple” is a 100% lie, but should generally have no consequences. The statement “all Ukrainians are Nazis”, on the other hand, is not only a lie, it is also likely to undermine support for the attacked Ukraine and thus help the aggressor Putin to win, with genocidal consequences for the Ukrainian population and dire consequences for European security.

When determining the severity of a lie, at least the consequences for the following aspects should be taken into account, between harmless (0%) and harmful (100%)

personal security
internal security
national security

The severity is determined as the maximum of the ratings of the relevant security aspects.

3.11.5 Degree of mass

Disinformation campaigns (and hate mobbing) thrive on the number of perpetrators involved. Therefore, the number of liars is an important feature for determining the level of punishment. This rule is important because

the truth cannot be voted on
offenders must not be able to hide behind a group.

Therefore, offenses committed by groups (§ 184j) are punished (and must be punished) in a special way.

3.11.6 Degree of victimization

We consider an offense to be worse if it is directed against a defenseless innocent person or group of people than if it is directed against a defensible guilty person. Killing an innocent - civilian - child is different from killing an attacking adult soldier in self-defense or emergency aid.

The statements “all Russians are Nazis” and “all Ukrainians are Nazis” are both false, but the second is directed - in the current context of 2024 - against an attacked people who are defending themselves against a war of extermination, is an attempt to legitimize this war of extermination and therefore has a high degree of victimization.

3.11.7 Reach

Reach, measured by the number of people reached, is an important criterion for the severity of a lie. If an influencer with a million followers publishes a lie, it has a different quality than if Little Jane or Little Jonny with 20 followers does it. If Jonny Geek publishes a lie in a school magazine with a circulation of 100 copies, this is rather harmless and can be handled within the school. It is completely different when an “expert” with an academic reputation (and civil servant duties) writes an article for Der Spiegel, a renowned weekly magazine that reaches around 4 million readers per issue and lies to them.

Reach could be scored as follows:

up to 500 readers 0%
up to 1,000 readers 10%
up to 5,000 readers 20%
up to 10,000 readers 30%
up to 25,000 readers 40%
up to 50,000 readers 50%
up to 75,000 readers 60%
up to 100,000 readers 70%
up to 250,000 readers 80%
up to 500,000 readers 90%
over 500,000 readers 100%

3.11.8 Degree of expertise

A punch from a karate fighter is judged differently in court than a punch from a layman. The hands of a karateka with a black belt are considered weapons. We expect a professional to handle his weapons in a particularly responsible manner.

We determine the degree of expertise of a lie on the basis of two aspects (maximum of the percentage ratings):

Is the author of the lie an expert in the field of the statement (or claims to be)?
Is the author a professional journalist or professional communicator?

When a full-time professor of international politics comments on the war in Ukraine, it is a different matter than when a layperson does so. We suggest the following scoring

No professional training in the field of the statement 0%
Journeyman/Bachelor/ University of applied sciences 20%
Master/Master/Diploma 40%
Doctorate 60%
Habilitation 80%
Professorship 100%

If the current professional activity is in the field of the statement, the score is increased by 20% points. If expertise in the field of the statement is claimed, the assessment increases by 20% points.

Trained or full-time journalists are awarded 100%. Social media accounts are scored as follows:

up to 500 followers 0%
up to 1,000 followers 10%
up to 5,000 followers 20%
up to 10,000 followers 30%
up to 25,000 followers 40%
up to 50,000 followers 50%
up to 75,000 followers 60%
up to 100,000 followers 70%
up to 250,000 followers 80%
up to 500,000 followers 90%
over 500,000 followers 100%

Selecting account options with special reach increases the point value by 20%.

3.11.9 Liar-score

We generally punish repeat offenders more severely than first-time offenders, who we give a chance of social rehabilitation.

A liar-score codes the accumulated lies, i.e. the unreliability of the source that has become apparent over time. Liar-scores can be maintained per social network, or, as with the Flensburg points register, fines and penalties imposed can be collected and aggregated across different publishing bodies.

3.12 Anonymous accounts

There are good reasons to have an anonymous account on social networks, for example if you are using them to counter propaganda from Russian secret services. If an anonymous account commits a crime, the network operator is obliged to disclose the identity to the investigating authorities. But what do you do in the case of administrative offenses where revealing the identity is not proportionate? How can fines be collected from an anonymous account?

Quite simply: in the case of anonymous accounts, the network operator would be obliged to pay in advance. They could try to recover the fines or even demand a deposit in advance for operating an anonymous account. In the event of repeated violations (above a certain lie score), the network operator could demand that the account holder give up anonymity or block the account.

3.13 Artificial accounts

Bots, artificial intelligence and other robots have no right to freedom of expression and could simply be banned. The network operator must be sanctioned if they allow bots or do not comply with requests from the authorities to block them. There must be appeals procedures for illegally blocked accounts (which end up in court if necessary).

3.14 Okhmatdyt children’s hospital

On July 8, 2024, Russia fired a missile at the Okhmatdyt Children’s Hospital in Kiev. Two adults were killed and 30 people were injured, including 10 children Wikipedia.

On July 11, 2024, the leader and namesake of the pro-Putinist party “Alliance Sahra Wagenknecht (BSW)” is a guest on the talk show “Maybrit Illner” with an average of 2.5 million viewers in the first half of 2024. The entire show can be viewed on the ZDFheute YouTube channel (1.3 million subscribers) and had (another) 580,000 views YouTube.

In this talk show, Sahra Wagenknecht suggested that the Okhmatdyt children’s hospital in Kiev was not hit by a Russian missile, but by debris from a defensive missile. The relevant excerpt can be found here X

and is commented on by Gert Wöllmann as follows:

Wagenknecht’s method: doubting the Russian missile attack on the children’s hospital for a minute, only to claim at the end - after a headwind - that she doesn’t want to argue about it at all, since it’s not her topic. It was only for one minute.

Sahra Wagenknecht said verbatim:

I would like to set the record straight on one point, because they always say that the defense missiles can protect. Many civilian casualties in Ukraine, as is also reported, are also caused by missiles being intercepted and the debris then traveling into civilian areas.

So in Kiev, for example, on the same day that the children’s hospital was hit, several deaths were reported in a women’s health center; they were murdered by falling missile fragments.

The first reports were also from the children’s hospital, incidentally, that these were also falling missile fragments.

Claudia Major pointed out that this is disinformation:

That has been refuted as false

Sahra Wagenknecht is evasive:

But I don’t want to argue about that at all

Omid Nouripour confirms:

It has been confirmed from all sides

Sahra Wagenknecht insists:

No, It’s not confirmed. They have only confirmed that they found rocket parts there. But that is, of course, if they launch a missile, they will find the missile parts. I don’t want to talk about it, I don’t know the situation. And I know that in war, lies are told by all sides. So it may be that the Russians are lying, it may be that the Ukrainians are lying. I don’t think it’s very plausible to attack a children’s hospital at the opening of the NATO summit. But I don’t want to argue about that, because that’s not my topic.

Nein, streiten wollte sie nicht darüber, sondern falsche Behauptungen streuen, die im Gedächnisder Zuschauer hängen bleiben. Der Faktencheck der ARD “Auf Linie mit der russischen Propaganda” resümiert diese Passage unter der Überschrift “Falschaussagen zum Krieg in der Ukraine” wie folgt:

“Es gibt verschiedene Desinformationsmethoden, die bei Wagenknecht und ihren Parteimitgliedern auffallen”, sagt Klaus Gestwa, Direktor des Instituts für Osteuropäische Geschichte und Landeskunde an der Universität Tübingen. Ungeniert würden Falschaussagen zum Krieg in der Ukraine verbreitet.

So suggerierte Wagenknecht beim ZDF-Polittalk von Maybrit Illner, das Kiewer Krankenhaus Ochmatdyt sei nicht von einer russischen Rakete getroffen worden, sondern mutmaßlich von Trümmerteilen einer ukrainischen Flugabwehrrakete. Dabei gilt es als ziemlich sicher, dass die Kinderklinik von einer russischen Rakete des Typs Kh-101 (Ch-101) getroffen wurde. Zu diesem Ergebnis kommt unter anderem die vorläufige Untersuchung des UN-Menschenrechtsbüros.

This actually provides enough information about a clear, punishable and court-proof lie by Sahra Wagenknecht. We will see in a moment that the severity of this lie corresponds to a criminal offense, and not just the simplified fine of an administrative offense via EUvsDisinfo. Nevertheless, let’s search for ‘Okhmatdyt’ and find eight entries, including this “DISINFO: Russia strikes military sites, Kyiv children’s hospital hit by fragments of Western air-defense missiles”, which clearly shows that it was a direct hit by a Russian Kh-101 missile:

Military experts have concluded unequivocally that the hospital was intentionally hit by a Russian missile, which Ukraine identified as a Kh-101 model launched from Russian aircraft Tu-95MS. The United Nations on 9 July 2024 said there was a “high likelihood” that the children’s hospital in Kyiv suffered “a direct hit” from a Russian missile.

The episode was serious enough to lead to a UN Security Council meeting on 9 July 2024 at Ukraine’s request. Online attempts to blame Ukraine for this incident have been debunked by professional fact-checkers.

This unsanctioned lie is not over yet. Just as the ARD fact-checker has clarified this and other lies by Sahra Wagenknecht and her party BSW, the small donation-financed Austrian fact-checker Mimikama has done the same. On 17.8.2024, the official X-account of BSW (19k followers) published this tweet with 35k views

We checked the facts of the self-proclaimed ‘fact checkers’. Result: Mimika spread misinformation about the #BSW. Now they have to apologize to us. Thank you for that. Next time, please do your research better.

The link leads to an “Editorial Correction” from Mimikama in which Mimikama retracts any accusations against Wagenknecht:

We had claimed that BSW was deliberately spreading pro-Russian disinformation. We hereby retract this accusation.

and (incorrectly) “corrects” the allegation about the children’s hospital:

We wrote that Sahra Wagenknecht claimed on Maybrit Illner https://youtu.be/s23M5K8kaxs that the Ochmadyt hospital in Kiev was presumably hit by a Ukrainian anti-aircraft missile, although investigations had shown that the hospital was hit by a Russian Kh-101 missile.

In fact, however, Ms. Wagenknecht had merely pointed out that it was only known that the hospital had been hit by missile fragments, but not by which ones. There was no independent investigation to support either side.

On the same day Mimikama admits that it was forced to make this false correction by massive legal pressure, otherwise the existence of the association would have been threatened:

The last 7 days have been one of the most challenging for me and the Mimikama online team that we have ever experienced. It all started, last Friday, with a warning letter from the Sahra Wagenknecht Alliance (BSW) regarding one of our articles from July 30, 2024. The article dealt with the spread of Russian propaganda by BSW, and although we were sure that our research was thorough and correct, we were accused by BSW’s lawyer of having made mistakes.

The warning was aimed at forcing us to issue a cease-and-desist declaration. The pressure was enormous: we were facing high legal fees and possible contractual penalties that could have threatened the existence of our small association. We were in daily contact with our lawyer and BSW’s lawyer to find a solution. During this time, we realized how quickly everything we work for can be in jeopardy.

We remain convinced that our reporting was correct, but it is understandable that BSW’s lawyer has a different view, especially in the context of the current election campaign. BSW has a vested interest in protecting certain narratives and this makes the situation particularly complicated. Given these political tensions, the confrontation was inevitable. In the end, it was with a heavy heart that we had to decide to sign the cease-and-desist declaration to avoid a lengthy and costly legal battle. This step was anything but easy for us.

So Wagenknecht - with Putin’s financial power behind her - forced a small fact-checking organization to ruin its reputation with a false correction. She was obviously unable to pull off the same maneuver with the fact-checker of the financially strong public broadcaster ARD (or agreed with ARD on the next high-reach program with Wagenknecht: prominent one-on-one interview and talk show participation on September 8 with Caren Misosga at prime time on Sunday at 21:45, as well as a conspicuous number of other nationwide TV shows with BSW protagonists, although BSW has never participated in a nationwide election).

In addition to the lie about the children’s hospital, Wagenknecht’s cowardly action is likely to have constituted the criminal offense of coercion by threatening a SLAPP suit. As for the lie itself, this episode proves that Wagenknecht lied against her better judgment and several times, and coerced third parties to lie about it.

Let’s move on to the scoring of this statement, which can clearly be classified as a lie:

Degree of lie: 100% lie, verified by various experts, fact checks incl. EUvsDisinfo
Degree of insistence: maximum insistence of 100% (despite instructions from experts in the program, ARD fact check, Mimikama fact check)
Frequency: multiple repetition of the lie, even coercing a fact checker to repeat the lie as truth
Severity: maximum severity of 100%, a war crime is denied in order to withdraw support from an attacked country
Mass degree: the EUvsDisinfo search yielded several hits
Degree of victimization: 100% of the victims of the war crime and the lie were sick children who were in the children’s hospital for treatment
Profigrad: 100% Wagenknecht has a degree in philosophy and a doctorate in politics, she is an experienced - and presumably FSB-trained - propagandist, claims expertise, is a full-time MP and has 727K followers on X.
Liar score: 100% Wagenknecht has been spreading Russian disinformation for years

3.15 Priorities

Is the truth, is peaceful, truthful communication less important than smooth, accident-free traffic?

If you look at the German clubs, you might think so. The Allgemeine Deutsche Automobil-Club e. V. (ADAC) has 22 million members, the Allgemeine Deutsche Fahrrad-Club e. V. (ADFC) has 230,000 members (1% of them), the FUSS e. V. - Fußgängerschutzverein und Fachverband Fußverkehr Deutschland (FUSS) has less than 1000 members (0.5% of them) and the Allgemeine Deutsche Social-Media-Club e. V. (ADSC) has zero (0) members, because it doesn’t even exist.

Personally, I spend 1 hour a week in the car, 5 hours on the bike, 10 hours walking and 28 hours consuming media and on social networks.

According to a Swiss study, the average time spent on the road is between 80 and 90 minutes per day, 40% of which is spent in the car and on the bike, i.e. a good half hour. According to the statistics portal de.statista.com, Germans spend 7 hours a day with media. According to data from datareportal.com, people around the world spend 2 hours 20 minutes on social media.

Looking at the duration of use, truthful and safe traffic on social networks appears to be even more important than car traffic.

3.16 Conclusion

Similar to Road traffic law, Part 2, a Communication law, Part 3 could be designed with an appropriate Classification of speech acts and Definition of a lie. Publication should imply a Duty to be truthful, especially in high-reach media such as Social networks, in order to protect society’s Common goods. The Public lies could be sanctioned without restricting freedom of expression, as the Example of elections shows. Lie or truth could be distinguished efficiently and with legal certainty, and established Catalogs of lies would allow fines to be imposed automatically. Deliberate lying could also be diagnosed with legal certainty and an appropriate penalty could be determined on the basis of eight Dimensions of the lie (Degree of falsehood, Degree of insistence, Frequency, Severity, Degree of mass, Degree of victimization, Degree of expertise, Liar-score). Anonymous accounts would also be feasible with automated fine procedures, and Artificial accounts could easily be banned. Using the example of Russia’s attack on the Okhmatdyt Children’s Hospital, we provide unequivocal proof of a serious lie that unfortunately remained unsanctioned … but could and should be sanctioned, because an appropriate Priorities of the usage time of traffic in social networks compared to road traffic requires this in order to prevent the corrosion of our society.