Twitter violates the political process

Operations: Article - 3/24/20

Fundamental rights in the digital space: Can the government block its critics on Facebook and Twitter?

Jacqueline Neumann

Case No. 228 (4/2019), pp. 91-98


The penultimate edition of the proceedings (No. 225/226) dealt with the limits to freedom of expression in social networks. The German debate is mostly about restrictions imposed by private network operators or the protection claims of third parties. In the following article, Jacqueline Neumann describes a different case, in which a prime minister blocked his uncomfortable followers. The author explains what consequences this has for the blocked participants and to what extent this restricts their freedom of expression.

 

1. The agora of the 21st century: On the problem of fundamental rights violations by government members on Twitter and Facebook

Article 5 of the Basic Law is considered to be one of the most noble basic rights of all. The constitutional guarantee of freedom of expression and information is constitutive for the open process of political opinion and will-formation as well as the participation of citizens in democratic discourse. This discourse is the prerequisite for democratic legitimation. In this regard, the Federal Constitutional Court declared in the fundamental Leipzig People's Newspaper decision (BVerfG, decision of October 3, 1969, Az. 1 BvR 46/65):

„The fundamental right to freedom of information, like the fundamental right to freedom of expression, is one of the most important prerequisites for free democracy. [] The individual should be able to form his or her opinion on the basis of widely scattered information material. [] Since the freedom of information, due to its connection with the democratic principle, is also intended to prepare a judgment on the policy of one's own state organs, the basic right must largely be preserved from restrictions by these state organs.“

The promotion of political participation and the indiscriminate accessibility of public places have always been a focus of the activities of civil rights movements such as the Humanist Union. These guarantees are currently exposed to new attacks. Assaults that happen in the digital space, because nowadays democratic discourse no longer only takes place on the marketplace, in the pedestrian zone, at party events or in the letters to the editor of the daily newspapers, but also on digital communication platforms such as Twitter and Facebook. According to recent experience, the course of the debate on these digital platforms plays a decisive role in voting. In the opinion of the Federal Constitutional Court, Facebook, for example, is therefore of "paramount importance" [1] for the dissemination of political ideas and participation in democratic decision-making. This is particularly also because Facebook is used actively by more than 23 million people in Germany every day, according to its own information. [2]

According to estimates, Twitter is actively used by more than half a million people in Germany every day, [3] and it also has an enormous impact in the public debate room. The question therefore arises as to how it should be judged if government members, ministries or authorities block certain users on their Facebook and Twitter channels.

With this question we are moving on the "uncharted territory" of communication by government agencies in the digital media and the validity of fundamental rights there.

How is the Federal Government reacting to this development? According to a response to a small request from members of the party Die Linke (BT-Drs. 19/1802), federal ministries and federal authorities blocked at least 268 users on their various accounts on Twitter in spring 2018. The federal ministries would independently decide on the criteria for blocking. The federal government cites the prevention of the dissemination of criminally relevant content or a violation of netiquette (i.e. rules of conduct) as general criteria for blocking. Are these the limits of the blocking behavior, and are these limits observed? Rather not. The case of the State Minister in the Foreign Office, Niels Annen (SPD), attracted media attention at the beginning of 2019. The Minister of State had blocked the European correspondent of the Jerusalem Post, Benjamin Weinthal, on Twitter. The reporter had previously reported critical of Annens appearance at a celebration of the 40th anniversary of the Islamic revolution in Iran in the embassy in Berlin. After the journalist and a lawyer had sent the state minister a warning, the state minister later lifted the reporter's blockade without explanation. [4] There are countless indications of illegal user blockades circulating on the Internet. So far, however, there is no precedent in Germany.

On the other hand, in July 2019, an appeals court in the USA classified Twitter blockades by American President Donald J. Trump against critics as a violation of freedom of expression. The US Justice Department had argued - unsuccessfully - that Trump's Twitter account had been set up before he took office and that he was blocking as a private person. [5]

Also in 2019, the Institute for Weltanschauungsrecht (ifw) saw itself quite unexpectedly affected by a Twitter blockade by the Thuringian Prime Minister Bodo Ramelow (Die Linke).

 

2. The Twitter blockade of the Thuringian Prime Minister Bodo Ramelow against the ifw

The ifw was in an exchange with the Thuringian Prime Minister on Twitter about various statements he had made in an official capacity on the constitutional mandate to replace state benefits (Art. 140 Basic Law in conjunction with Art. 138 Para. 1 Weimar Constitution). The Prime Minister also used his Twitter account @bodoramelow for this purpose.
The exchange took place as follows: In June 2018, on the occasion of the FAZ article "Claims of 1803: Churches receive record payments from the state", the institute sent the following Twitter thread to Thuringia and twittered the parliamentary groups in the Thuringian state parliament with this question:

„Even under Red-Red-Green in # Thuringia with @bodoramelow the #State services continue to bubble to the churches. Against your own election promise! See Wahlprüfstein @konfessionsfrei. When does the state legislature act?“

Thuringia's Prime Minister Bodo Ramelow replied to the ifw some time later and stated in his tweet that he was not responsible: "Please do not assign that to the state government". He also said that the text referred to by the ifw referred to the "replacement regulations in the Basic Law" and "there has not been a majority for this in the Bundestag so far." He also assumed that the ifw did not know the "difference between state law and federal law".
After the red-red-green state government had apparently remained inactive since this Ramelow tweet to the ifw, but at the same time wanted to celebrate the 100th anniversary of the constituent meeting of the German National Assembly in Weimar on February 6, 2019, the author wrote on this feast day of this article for the ifw contributes to the constitutional mandate that has been disregarded for 100 years. In the article “State Achievements Forever?” The institute called for the constitutional responsibility of the Prime Minister. [6] The ifw pointed out that the Thuringian Prime Minister could not refer to the lack of a majority in the Bundestag in the event of his inactivity, since the state government and the state parliament were also able to act without the federal government. After all, it was members of his own party who, in response to a parliamentary question in 2013 (BT-Drs. 18/45), found out about the legal opinion of the Federal Government:

„Regardless of the amount of the required transfer fees, the federal states have the option, even without such a fundamental law, to redesign and cancel state benefits by way of contractual agreement with the churches

The ifw also explained that the initiative for a fundamental law at the federal level could also come from Thuringia via the Federal Council. The federal states are entitled to claim that the federal government fulfills its duty to enact a basic law under Article 138, Paragraph 2 of the Weimar Constitution. The federal states could have the unconstitutionality of the omission in the federal-state dispute determined by a constitutional court.

In the state election program 2014 [7], the Left Party still considered the state achievements in Thuringia to be “out of date” and promised to support “federal political initiatives” to end it (p. 53). The answer to an election test stone for the 2017 federal election was (BT-Drs. 18/4842):

„DIE LINKE advocates the replacement of state payments to the churches and thus the fulfillment of the constitutional mandate of 1919. []“.[8]

In Thuringia, the only federal state in which Die Linke provides the head of government, the party has not yet taken any initiative to replace state benefits and has not yet used the existing political majority to ensure "contemporary" conditions and the implementation of the constitutional mandate .
The ifw also made the Prime Minister aware of the above-mentioned excerpts from the article “State services forever?” Via Twitter. He didn't react immediately to that. However, the ifw received indications that the state services article had caused anger in the State Chancellery and in parts of the Left Party. On April 15, 2019, the institute found that the Prime Minister had blocked the Twitter account @ifw_recht. The ifw announced the Twitter blockade on the same day. Some Twitter accounts took up the issue, including some with reach like the Humanist Press Service. From Switzerland, the President of the Freethinkers Association, Andreas Kyriacou, sent a separate tweet to the Prime Minister criticizing the information block. However, none of this resulted in an unlock.

The ifw therefore initiated, through its sponsor, the Giordano Bruno Foundation (gbs), first a clarification of the facts and an out-of-court dispute settlement, then later a lawsuit. After the ifw had published the filing of the lawsuit, other Twitter users also reported who had distributed the ifw article “State services forever?” That had triggered the blocking on Twitter and whose accounts were then also blocked by the Prime Minister.

 

3. Legal assessment: blocking as a disproportionate interference with fundamental rights

With the initiation of the lawsuit, the institute intended - beyond the enforcement of its own legal interests - to clarify central points of network policy on the "uncharted territory" of communication by government members and authorities in the digital media.

Can a Prime Minister block users on Twitter who objectively criticize him for his constitutional disregard for state services and who campaign for the state services to be finally replaced after 100 years of breach of the constitution?

During the legal processing, two points of overriding relevance emerged that can also be helpful for other (expected future) cases.

a. Allocation of the Twitter account as a communication medium to the official activity

Can the Twitter account @bodoramelow be assigned to the state government? Obviously, Prime Minister Ramelow did not specify his public office, but rather "person", on his Twitter profile to describe the person. At first glance, it may seem like a private account. However, this Twitter account clearly contains official statements that are not accessible elsewhere. Ramelow publishes there reports such as “word held”, in which the successes of the Thuringian state government are presented. He also expresses himself, for example, in his function as employer on the personnel situation in the police. Another advantage of a Twitter account used for work is that this Twitter account is regularly (i.e. several times a day) involved in the public relations work of the state government and the Twitter account @thueringende. The Twitter profile here is: “Official Twitter channel of the Thuringian State Chancellery. News and information on the Free State of Thuringia ”. In many cases, tweets from @thueringende address the Twitter account @bodoramelow with the official designation: "... Prime Minister @bodoramelow ...", whereupon the Twitter account @bodoramelow reacts in the performance of the Prime Minister's official business. According to the ifw's assessment, the Prime Minister's Twitter account is therefore a communication medium that can be assigned to his official activity.

b. Blocking of Twitter users by a prime minister as an encroachment on fundamental rights

The publications of a Prime Minister of a federal state are of considerable importance for the formation of political opinion. Ramelow uses his Twitter account to take political positions, to promote his politics, to stimulate discussions and to influence. If the Prime Minister blocks a Twitter user, he no longer sees his (unpleasant) comments and limits his reach. Furthermore, this user can no longer directly follow the tweets of the blocking Prime Minister himself, but is dependent on receiving these statements secondhand, i.e. filtered by the reporting interests of third parties. This interferes in particular with the fundamentally protected right to inform oneself and to form an opinion based on one's own information. [9]

The legal interpretation of the encroachment on fundamental rights in the digital space is confirmed by an expert opinion by the Scientific Service of the Bundestag. [10] According to this, by blocking certain posts or users on his Twitter account, in addition to freedom of information (Article 5 (1) sentence 1 of the Basic Law), a Prime Minister intervenes in the following basic rights:

  • the freedom of expression of the user, since he can no longer comment on contributions by the Prime Minister (Article 5, Paragraph 1, Sentence 1, Basic Law);
  • the right to equal participation in public services and institutions (Article 5, Paragraph 1, Sentence 1 of the Basic Law, Article 3, Paragraph 1 of the Basic Law);
  • freedom of the press if the user is a media representative (Art. 5 Para. 1 S. 2).

Under certain circumstances, Twitter has programmed mechanisms with which the Prime Minister's blockade leads to further negative effects for the blocked account (e.g. reach, blocking behavior).

The parliamentary group Die Linke wrote in a small request to the federal government of April 24, 2019 (BT-Drs. 19/1802) that blocking and blocking of Twitter accounts by government agencies on Twitter are constitutionally problematic. Such a restriction of the rights of freedom by state bodies is only possible if there is a legal regulation for this. However, even if a legal regulation existed for this, the restriction must also be proportionate.

From the decision of the Federal Constitutional Court on the party “The III. Path “[11] follows that Twitter, Facebook & Co. are not allowed to arbitrarily exclude their users from communication without observing procedural rules. What applies to a private company, in which the fundamental rights only have an indirect effect, must even more apply to the accounts operated by heads of government and authorities.

Transferred to the analog world, the ifw case would have worked out as follows: Prime Minister Ramelow invites you to a public discussion event on the subject of “100 years of the Weimar Constitution”. The event takes place in an event hall of a privately operated hotel. In the context of the discussion, the ifw coordinator represents her position, which is in line with the principles of the constitution, on the implementation of the state services constitutional mandate, and criticizes the Prime Minister for his disregard for the constitution with regard to the permanent payments to the churches from taxpayers' money. After the first exchange of words and before she has fully spoken, the Prime Minister lets the ushers kick her out for no good reason. Does the Prime Minister expect that they will not have to burden this because he did not hold the event as Prime Minister, but only as a private person, as a "person"? Are their fundamental rights not violated by this?

The Prime Minister's Twitter blockade of the ifw was neither based on a legal regulation nor was it proportionate. The ifw did not make any statements relevant to criminal law or violations of netiquette, only objective criticism of its inaction with regard to the replacement of state services to the churches, covered by freedom of expression. The blockade therefore violated the fundamental rights of freedom of expression and information and the right to equal participation in public services and facilities. In addition, according to the general perception, this attempt to exclude the debate and block information by a prime minister in a free democracy was a scandal.

After the legal proceedings against the Prime Minister had been initiated, the ifw established during a routine check that he had silently and wordlessly unlocked the ifw Twitter account. The Prime Minister has not yet issued a statement on the matter. Despite the request via the Twitter account that has now been activated again, he has neither justified the blocking nor the unblocking, which seems arbitrary. In the meantime, he only announced via Twitter that the administrative court had referred the legal dispute to the local court because the prime minister waived state insignia on his account and referred to himself as "human". Other users who had also been blocked by Ramelow after they retweeted the ifw article “State services forever?” stated that they had not been unlocked again.

 

3. Conclusion: Legislators and courts must also strengthen fundamental rights in the digital space

The ifw rates the unblocking and restoration of basic rights as a success. However, this is reduced by the fact that clarification of the fundamental rights of a Prime Minister and authorities in the digital media is no longer possible in this case by legal means due to the unblocking. However, it is (unfortunately) to be expected that there will be further cases of dubious behavior such as that of State Minister Annen and Prime Minister Ramelow, as long as the legislature and the courts do not strengthen fundamental rights in the digital space as well.


Jacqueline Neumann Dr. jur., co-founder and scientific coordinator of the Institute for Weltanschauungsrecht (ifw). Editor with Gerhard Czermak, Reinhard Merkel, Holm Putzke (2019) “Current Developments in Weltanschauungsrecht” at Nomos Verlag. Website: www.weltanschauungsrecht.de

 

Remarks:

1 BVerfG, decision v. May 22, 2019, Az. 1 BvQ 42/19.

2 Roth (03/2019) "Official Facebook user numbers for Germany", at https://allfacebook.de/zahlen_akte / official-facebook-nutzerzahlen-deutschland.

3 Buggisch (01/2019) "Social Media, Messenger and Streaming - User Numbers in Germany 2019", at https://buggisch.wordpress.com/2019/01/02/social-media-messenger-und-streaming-nutzerzahlen- in-germany-2019.

4 Bovermann (February 28, 2019) "Locked out on Twitter", on https://www.sueddeutsche.de/medien/niels-annen-twitter-pressefreiheit-jerusalem-post-1.4349608.

5 Tagesspiegel (07/09/2019) "Court judgment confirmed: Trump must not block critics on Twitter", at https://www.tagesspiegel.de/politik/gerichtsprüfung-bestaetigt-trump-darf-kritiker-auf-twitter-nicht-blockieren /24576792.html.

6 Neumann (February 6, 2019) “State benefits forever? A commentary on the church appropriation of the Thuringian Prime Minister Bodo Ramelow (Die Linke) in the 100th year of the constitutional breach ”, on https://weltanschauungsrecht.de/meldung/staatsleistungen-auf-ewig-bodo-ramelow-thueringen.

7 State election program Thuringia 2014 Die Linke, at https://www.die-linke-thueringen.de/fileadmin/LV_Thueringen/dokumente/ltw_2014/LinkeTHU_LTW_Langwahlprogramm_web.pdf.

8 answers to the KORSO election test stones for the 2017 Bundestag election, on http://www.korso-deutschland.de/der-korso-hat-gefragt-und-die-parts-haben-geantickt.

9 See BVerfG, decision v. October 3, 1969, Az. 1 BvR 46/65 - Leipziger Volkszeitung.

10 See access to police public relations in social media (“Twitter”) WD 3-3000-044 / 18 of February 21, 2018.

11 BVerfG, decision v. May 22, 2019, Az. 1 BvQ 42/19.