ReadNOW

The 144-page coalition deal signed last week between Germany’s conservative CDU/CSU political union and the centre-left Social Democrats outlines steps to address “disinformation” and “targeted influence on elections”, citing “serious threats to our democracy”.

The move comes amid mounting concern in Europe over the impact of electoral disinformation, and after a series of clashes between Washington and Berlin over free speech and democratic principles. 

Ahead of February’s German election, Trump ally and tech mogul Elon Musk tried to bolster the far-right Alternative for Germany (AfD), just as J.D. Vance delivered a blistering criticism of supposed free speech suppression in Europe at the Munich Security Conference.

US Secretary of State Marco Rubio has since accused Germany of “tyranny in disguise” after the German intelligence agency labeled AfD as a “right-wing extremist” party, a decision that was then suspended.

Now, Conservative commentators have accused the new German government of introducing a “ban on lies” due to a sentence of the coalition deal between the CDU/CSU and the SPD that reads: “The deliberate dissemination of false factual claims is not covered by freedom of expression.” 

No change to free speech guarantees

But two legal experts have told Euroverify that this extract from the coalition agreement represents “nothing new” and is in line with the protections of free speech granted by German law.

“This sentence (…)  is well-founded on the case law of the German Constitutional Court. So this is not new at all,” according to Dr. Matthias Bäcker, Professor of public and information law at the Gutenberg University of Mainz.

While Article 5 of Germany’s constitution, known as the Basic Law, guarantees the freedom of expression and opinion, false claims that are proven beyond doubt to be untrue and spread in an intentional way are not, strictly speaking, always covered under freedom of expression.

“This has always been the case under the constitution, according to the jurisdiction of our federal constitutional court,” Dr. Ralf Müller-Terpitz, Chair of Public Law, Law of Economic Regulation and Media at the University of Mannheim, told Euroverify.

German fact-checking portal Correctiv pointed out that the Federal Constitutional Court ruled as far back as 1982 that statements that cannot be considered opinion are not automatically protected, particularly when it relates to “proven or knowingly untrue statements of fact.”

This has been confirmed in several cases since, including a 2012 Federal Constitutional Court ruling that found that “a proven or knowingly false statement of fact is not covered by the protection” of the German Basic Law.

Regional minister says free speech has ‘boundaries’

Nathanael Liminski, Minister for federal, European, international affairs and media of North Rhine-Westphalia, who was part of the working group responsible for media policy in the coalition agreement, told Euroverify that it had been drafted to “enforce the fight against disinformation on the European level, on the federal level, as well as on the level of the states”.

“We have a tradition that freedom is not without responsibility. And this means that freedom has boundaries. And at least in our European way of free speech, it’s always connected to responsibility, and this means that freedom of speech has boundaries,” Minister Liminski said, citing anti-Semitism and denial of the Holocaust as concrete examples of those boundaries.

Experts defend strong free speech protections

However, instances in which statements fall outside the protections of freedom of expression are extremely rare.

“Whenever there’s doubt, you are within the scope of freedom of expression. Moreover, if you combine factual statements with value statements, evaluations, comments, you’re also within the scope of freedom of expression, even if the factual part might be wrong,” Professor Bäcker explained, adding that anything falling outside the scope of free speech would have to “conform with the principle of proportionality.”

Even if a statement isn’t protected by the Basic Law, it doesn’t mean that it’s forbidden or punishable by law.

The spread of false statements can however lead to prosecution when used to commit fraud or defamation or to incite hatred, as such false claims specifically infringe on an individual’s property or fundamental rights.

The editor-in-chief of a far-right media outlet affiliated to AfD was recently handed a suspended 7-month prison sentence for spreading a fake meme of former Interior Minister Nancy Faeser on social media, in a defamation case that was heavily criticised for its severity by politicians on all sides of the political spectrum, and which sparked concerns about backsliding on free speech.

These infringements are more difficult to define when it comes to disinformation in an electoral context, according to Professor Bäcker, as they relate to “democratic concepts” and “collective goods.”

Claims Berlin will establish ‘Ministry of Truth’ are unfounded

Commentators have also claimed the new government is set to establish a so-called Ministry of Truth to “define truth versus lies.”

This claim is unfounded. The coalition deal in fact says that “the non-governmental media regulator must be able to take action against information manipulation as well as hate and incitement, while preserving freedom of expression and on the basis of clear legal guidelines”.

This refers to the 14 independent state media authorities in Germany, which are distanced from the government and organised at the federal state level.

While the wording of the coalition deal hints at a stronger role for the media regulator, Dr. Tobaias Schmid, European Affairs Commissioner of the Conference of Directors of the German Media Authorities (DLM), told Euroverify that “it’s important to realise that this coalition agreement is a political statement, it’s not a law”.

“We are part of the executive power and, of course, the binding part is the law and not some political ideas,” he added. “But beside this, I think indeed this coalition agreement says that there is a clear focus on the question of disinformation to protect freedom in media in general.”

The EU’s digital rulebook

The text of the coalition agreement also states that “systematically deployed manipulative dissemination techniques such as the mass and coordinated use of bots and fake accounts must be prohibited”.

According to Professor Bäcker, this is a task that could be “possible” and “justified, providing it’s proportionate” and a robust dinstiction is made to identify those bots deployed manipulatively.

Professor Müller-Terpitz, however, said this would be a “delicate issue,” adding that he does “not have the impression that the (German) Federation has the competence to adopt a law that stipulates such a prohibition”.

Minister Liminski suggested to Euroverify that such a prohibition could be floated as part of a further “development” of the EU’s sweeping digital rulebook, the Digital Services Act.

“We have put very concrete proposals in the treaty. So for example, that the federal government should start initiative to improve the Digital Services Act by fighting the massive use of fake accounts of bots, for example,” Liminski explained. “And we have to fight this, because this is distorting the public space.”