Germany’s New Coalition Government Tackles Disinformation: Clarifying the Debate on Free Speech and Democratic Principles
Germany’s recent coalition agreement between the CDU/CSU and SPD has sparked both domestic and international controversy, with critics accusing the new government of curtailing free speech under the guise of combating disinformation. The agreement outlines measures to address the spread of false information and its potential impact on elections, citing these as "serious threats to our democracy." This move follows rising anxieties across Europe about electoral disinformation and coincides with escalating tensions between Germany and the United States regarding free speech and democratic values. Key incidents fueling the debate include Elon Musk’s perceived support of the far-right AfD party and J.D. Vance’s criticism of alleged free speech suppression in Europe. Furthermore, US Senator Marco Rubio levelled accusations of "tyranny in disguise" against Germany, following the temporary designation of the AfD as a "right-wing extremist" party by German intelligence.
The central point of contention revolves around a sentence in the coalition agreement stating, "The deliberate dissemination of false factual claims is not covered by freedom of expression." This has led some to interpret the measure as a "ban on lies," raising concerns about government overreach. However, legal experts maintain that this provision reflects established legal precedent and aligns with existing protections for free speech under German law. Article 5 of Germany’s Basic Law guarantees freedom of expression and opinion; however, knowingly and intentionally spreading demonstrably false claims has never been entirely protected under this right, according to rulings of the Federal Constitutional Court. This interpretation is supported by legal scholars and reaffirmed by previous court decisions dating back to 1982.
Nathanael Liminski, Minister for federal, European, international affairs, and media of North Rhine-Westphalia, emphasized that the coalition agreement aims to strengthen the fight against disinformation at all levels of government while upholding the principle that freedom comes with responsibility. While recognizing the boundaries of free speech, Liminski cited examples such as anti-Semitism and Holocaust denial as falling outside these protections. Legal experts, however, emphasize the rarity of such instances, noting that the scope of freedom of expression is broad and that even inaccurate factual statements often remain protected when combined with opinions, evaluations, or commentary. Moreover, even if a statement falls outside the Basic Law’s protection, it doesn’t automatically become illegal unless it’s used in the commission of other offenses like fraud, defamation, or hate speech.
Allegations of a forthcoming "Ministry of Truth" are also unfounded. The coalition agreement actually proposes empowering the existing non-governmental media regulator to address information manipulation, hate speech, and incitement, while upholding free speech principles and adhering to clear legal guidelines. This refers to the 14 independent state media authorities, which operate at the state level and are separate from the federal government. While the agreement suggests a potentially stronger role for the media regulator, it remains a political statement rather than binding law, with the legal framework ultimately governing its implementation.
A further point of discussion relates to the coalition agreement’s intention to prohibit "systematically deployed manipulative dissemination techniques" such as the use of bots and fake accounts. Legal experts offer differing perspectives on the feasibility and legality of such a prohibition. While one expert deems it potentially justifiable if implemented proportionately with clear distinctions between legitimate and manipulative bot use, another questions the federal government’s jurisdiction in this area. Minister Liminski suggested that such a prohibition could be explored within the framework of the EU’s Digital Services Act, aiming to address the distortion of the public sphere through manipulative online practices.
In summary, the German coalition agreement’s approach to disinformation has sparked a complex debate about free speech and democratic principles. While critics express concerns about potential restrictions on free expression, legal experts and government representatives assert that the measures align with existing legal frameworks and aim to strike a balance between combating disinformation and safeguarding fundamental rights. The ongoing discussion highlights the challenges of navigating the evolving digital landscape and addressing the spread of false information while upholding democratic values.
