Containing authoritarianism in the digital age: Platform governance in view of Germany’s constitutional order

Introduction: Current Challenges in Governing Digital Spaces

Terror attacks in Christchurch and Halle streamed live via Facebook and Twitch; an attempted storm of the German Bundestag promoted via Telegram; the successful storming of the US Capitol, and a sitting US President deplatformed by private companies for inciting such violence: Western democracies seem to be facing stormy waters. And the facilitator of these escalations, according to a common interpretation in public discourse, is the internet.

Mis- and disinformation, an upsurge of hateful and uncivilized speech and internationalized online right-wing terrorist scenes are posing a substantial threat to the functioning of democratic systems. These factors are creating an urgent need among democracies to find solutions for managing the (digital) transformation they are facing.

It is this need for crisis and transformation management which has put issues of platform governance – understood as “the set of legal, political, and economic relationships structuring interactions between users, technology companies, governments, and other key stakeholders in the platform ecosystem” – to the forefront of public discussion. As most of the biggest platforms used to be and still are based in the US, American ideas about freedom of speech and a mostly unregulated marketplaces of ideas used to be the guiding principles for governing these platforms and other digital information and communication technologies. However, faced with the crises described above, there is increasing criticism of these ideals for leaving the new digital public sphere unprotected against potential enemies of democracy. As a reaction to the above-mentioned phenomena and the resulting public pressure, there has been a substantial shift to much more restrictive governance approaches on most of the major platforms in recent years. At the same time, this change has also been accompanied by concerns about power abuse by platforms and the state, and the potential shutdown of legitimate opposition. 

To create an appropriate governance framework to tackle these challenges, it is important to understand what exactly the rise of digital media has changed for democratic systems. Does it necessarily play the negative role suggested above? It can be argued that digital media drive political disruption by shaping the opportunity structure for political outsiders and newcomers. They allow them to enter the political arena much more easily compared to pre-internet times, to push their issues, struggles and conflicts onto the public agenda, and to challenge and disrupt old power structures. This disruption of the status quo has an inherent democratic potential, as it allows formerly silenced voices to raise their issues and renegotiate how they need to be addressed. The potential benefits of this are evident, for example, in the rise of the environmental movement. Its successes in agenda setting in the last years are grounded not only in the urgency of the issue, but also in the new digital opportunity structure on which they rely to organize demonstrations and distribute their message via digital and traditional media.

However, as with every kind of democratic feature, this disruption of established power structures also carries authoritarian potential, as opponents of democracy can easily misuse it. Looking at the example of the rise of the Far-Right in the digital sphere – especially in the US, but also in other contexts like Europe – it cannot be denied that anti-democratic users and movements like the Far-Right successfully use the internet to organize and mobilize their supporters, influence the public agenda in their favor and shape the political landscape. It is important to note that their success is assuredly not rooted in the internet itself but derive from foundational societal structures, transformations, conflicts and events such as globalization, individualization, diversification, liberalization, social injustice, deprivation experience, migration, racism, terrorism or major crises events. Nonetheless, digital media have changed the opportunity structure for authoritarian actors like the Far-Right and are central spaces for maneuvering. As such they are nowadays a central factor to their success.

Germany's "Wehrhafte" Democracy

Against this background, the core challenge that democratic societies are facing is containing the authoritarian threats of digital disruption, while safeguarding the platform's democratic potential. Digital environments and dynamics aside, of course, these issues are not new: Fending off authoritarian actors that abuse democratic means (like freedom of expression) to undermine democracy from the inside, without becoming anti-democratic themselves, has always been a challenge for democracies, especially for young ones.

It is therefore not surprising that “Digital Constitutionalism” is gaining traction as a way of utilizing state-centered constitutional concepts to think about – and change – power structures online. In this context, we want to highlight two German constitutional concepts for the platform governance debate, namely those of the “liberal democratic basic order” (freiheitliche demokratische Grundordnung, FDGO) and of “militant democracy” (wehrhafte Demokratie). As key concepts of the 1949 German constitution, they have played a major part in Germany’s democratic success by providing tools for the state to defend itself. They also offer a set of shared principles on which democrats across the political spectrum can draw in response to authoritarian trends.

We argue that these concepts offer helpful perspectives for addressing the tension between the democratic and authoritarian potential of digital media – especially concerning social media and messaging platforms – and the ever-present danger that countermeasures may themselves contribute to democratic backsliding or human rights violations.

The Basic Law Concept of a Liberal Democratic Basic Order

The idea of militant democracy unfolds in the Basic Law concept of the FDGO, as a synoptic self-description of Germany’s constitution.^[1] This liberal democratic basic order centers equally on the two pillars of human dignity and fundamental rights (“liberal”) and the idea that all power emanates from the people (“democratic”). In the words of the FCC, it is characterized by

Respect for the human rights (…), the sovereignty of the people, the separation of powers, the accountability of the government, the lawfulness of the administration, the independence of the courts, the multiparty principle, and equality of opportunity for all political parties with the right to form and exercise an opposition in accordance with the constitution.

"Wehrhaftigkeit": Strengthening this Order against the Enemies of Democracy

Active opposition to this order is constitutionally off limits. In case of such active opposition, the system has capabilities to defend itself, it is wehrhaft. The court understood this constitutional concept as a reaction to the “political indifference” of the Weimar Constitution, which had neglected to set effective limits to the freedom of the enemies of freedom, thus ultimately succumbing to the most totalitarian of the parties challenging it.^[2] Simultaneously, this order emphasizes the importance of the judiciary in deciding which political movements represent such a threat, to preserve it from administrative overreach. Remarkably, the concrete shape of the concept implemented by the authors of the Basic Law dates back to the works of German sociologists Karl Loewenstein (who also coined the term "militant democracy") and Karl Mannheim, who both lived in exile after fleeing Nazi Germany.

A Guiding Political Motive Beyond the Law

The concept soon outgrew its legalistic meaning, evolving into a term denoting democratic virtues shared across the political spectrum that democrats can use to ostracize anti-democratic trends. Far beyond the state itself, the liberal democratic basic order has thus become a guiding principle and touchstone for all political actions that has thereby developed considerable discursive power. Whether or not an entity, its goals and actions is considered as being aligned with this order substantially influences the way it is perceived.

So what made this constitutional approach to dealing with the enemies of freedom succeed, and how should it inform platform governance policies from now on?

Towards a Value-Based Democratic Platform Order

The Two Pillars of the Order: Human Dignity and Democracy

The two concepts of the Liberal Democratic Basic Order and the militant democracy can help to maneuver in the tension of safeguarding democratic potential while containing the authoritarian potential of digital platforms.

As outlined above, the Liberal Democratic Basic Order enshrines democratic principles but does not follow an absolute conception of democracy. It is value-based in the sense that it points to human dignity and a set of fundamental rights which the democratically elected parliament must uphold. The core of this commitment cannot be altered even by a constitution-amending two-thirds majority of democratically elected representatives.

Applied to platform governance, it means that freedom of expression as an example for and an incarnation of the democratic pillar is central to a functioning digital democracy on digital platforms. Therefore it must be protected. However, neither freedom of expression nor the democratic pillar as a whole are absolute; rather they are limited by the unwavering commitment to both pillars: Democratic means must not be used to endanger human dignity and/or democracy at large. If freedom of expression on a digital platform is abused and undermines human dignity and/or democracy, both need to be defended.

How can these two pillars of democracy and human dignity be defended within a platform governance approach?

Two Angles: Repressive Measures and Building Democratic Resilience

Repressive Measures

The concept of a militant democracy underlines the ability of the liberal basic order to defend itself. Within the context of the Basic Law, the FCC held that "[f]or the purpose of defending [the liberal democratic basic order], restrictions on its opponents' freedom of political activity are necessary." Consequently, violating this order may not only lower the protection of numerous participatory human rights, but theoretically even justify their forfeiture (Art. 18 GG); this may mean banning a political party (Art. 21 para. 2 GG), ensuring the protection not just of political actions from the system of government, but also vice versa. To put it another way: If someone abuses their democratic rights to undermine the democratic and/or human rights of others, a limitation of the abuser’s democratic rights can be justified. Due to recent constitutional amendments, this process is no longer caught in a permit/ban binary structure. The constitution was amended in accordance with an impulse the FCC provided in an obiter dictum. The constitution now allows the court to exclude parties from significant public funding (Article 21 para. 3 and para. 4 GG) if the conduct of their supporters appears to impair or endanger the liberal democratic basic order.

Translated to the context of platform governance, repressive mechanisms such as content deletion, downranking of content or actors, demonetization, or deplatforming can indeed be justified (in the sense of a democratic theory perspective) if the respective activities and actors are abusing their presence on the platforms to undermine human dignity or democracy, for example by mainstreaming authoritarian narratives, abusively silencing marginalized groups and/or inciting violence. This fits well with recent research on the silencing effect that harmful speech on platforms has, especially for marginalized groups, and new suggestions for how this effect should be taken into account when balancing freedom of expression and conflicting rights.

Building Democratic Resilience

Beyond these repressive mechanisms of a militant democracy, soft approaches that aim to build up democratic resilience have gained considerable importance over the years. Like repressive mechanisms, these are rooted in the liberal democratic basic order and the militant democracy, but try to avoid repression. Instead, they aim to enable an understanding of the authoritarian threat and counter it through democratic persuasion. The liberal democratic basic order is an influential reference point for hundreds of research, education and deradicalization activities, which are publicly funded on a massive scale.^[3] These cover researching and understanding authoritarian threats such as the extreme right (as well as the extreme left or religious extremism); organizing educational workshops and events; developing educational materials; supporting such actor groups as communal politicians, journalists or activists; providing discussion spaces and formats; giving prominence to democratic actors, and developing and implementing concepts of outreach, counseling and rehabilitation for those in danger (or dropping out) of extremist arenas.

Looking at the implications for platform governance, a given set of core values that guides a governance system therefore needs to be applied not only as a foundation for repressive practices, but mainly as a starting point for implementing substantial measures to build up democratic resilience. These measures can and should include funding and the facilitation of research; implementation of media literacy and civic education initiatives; (designing) initiatives to increase the prominence of democratic actors on platforms; supporting victims of hate and extremism, and funding deradicalization initiatives.^[4]

Primacy of Politics: The Importance of Political Discourse

While this may seem mild compared to the constitutional safeguards associated with the wehrhafte Demokratie protecting the liberal democratic basic order, it is worth noting that its decisive influence does not stem from the frequency of the enforcement of its repressive capabilities: The FCC has never had to forfeit an individual’s political rights, and has only banned two parties since the Basic Law took effect in 1949. In fact, the success of the constitutional ideals and identity enshrined in the liberal democratic basic order lies in the way it has resisted the temptation to silence its enemies and has entrusted the process of shaping public opinion to the reaction to extremist tendencies.

In terms of platform governance, this does not imply committing to an absolutist attitude toward free speech, but simply highlights the importance of searching for preexisting – or enabling – ways for tackling problematic speech within the marketplace of opinions before taking repressive measures. 

Risk-Based Interventions that Co-Evolve with Democracy

It is important to highlight that the implementation and execution of the militant democracy concept has changed over time, corresponding to shifts in the respective political landscape. This is demonstrated, for example, in relevant decisions of the FCC in regards to party bans. Political parties are one of the most important institutions for political participation in Germany. The possibility for the FCC to ban a party is therefore a powerful repressive  tool for limiting participatory rights and one of the most severe interventions in the militant democracy toolkit. In 2017 the FCC decided against banning the far-right and neo-Nazi National Democratic Party of Germany (NPD). In a departure from the two previous decisions of the court regarding the ban of political parties – namely of the SRP (the self-proclaimed successor to Hitler’s NSDAP) in 1952 and of the Communist Party of Germany in 1956 – the court has since changed its previous case-law. It now holds that the mere fact that a political party opposes the liberal democratic basic order is not a sufficient reason to ban it; rather, there must be a realistic threat (“potentiality”) that this party will rise to power. In the court’s assessment, the NPD did not pose such a threat, and therefore it did not ban the party. Below this threat level, however, the court saw room for a future (and now formalized) regime for excluding such parties from public funding.

The “danger” a party poses to the free democratic basic order is defined by the likelihood of its coming to power and the extent of its opposition to the order. This means the basis for action is not “static” in the sense of a measurement against a human rights-yardstick, but it correlates to the self-preservation capacity of the democratic discourse. As confidence grows in the efficacy of a given reaction to an antidemocratic challenge that occurs within the process of the free formation of public opinion, legal interventions against such challenges become harder to justify.

How can this be applied to platform governance policies?

First, a risk-based approach must openly outline what risk is presenting and by whom it is to be mitigated. Taking the structural perspective of Germany’s militant democracy, this means focusing on the discourse itself as the centerpiece of the protections put in place. Platform governance aiming to protect democracy and human dignity therefore needs to look beyond how problematic a given piece of content is as such, and also to consider the extent of its influence on the discourse in general: How successful is it in mainstreaming authoritarian ideologies and narratives and/or in silencing other discourse participants (for example marginalized groups)? How reliable is the discourse climate on a platform in countering a problematic statement; how could it be enhanced; to what degree is counter-speech possible (regarding design or  group dynamics) and effective?

Perhaps most importantly, militant democracy shows us that the threshold for intervention can never be static: The primacy of the political debate needs the oversight regime to co-evolve with the democratic culture it is supposed to protect, and – as much as possible at a given juncture – leave the necessary interventions to the political discourse. Initiatives by platforms and states to improve platform governance fall short of this standard if they enable interventions based only on a balancing of substantive rights without investigating and considering the opportunity structures for discursive self-preservation built into a given platform's design features and curation algorithms.

Only after these questions are answered can the necessary and adequate extent of countermeasures such as contextualization, demonetization, de-amplification or even temporary and permanent deplatforming be assessed.

Reconstructing Separation of Powers for Platform Governance

Of course, any measures that curb political activities online must pay special attention to how and by whom (or by what) they are enforced, and how adequate redress is to be provided. The liberal democratic basic order only allows for such repressive interventions as the (partial) limitation of participatory rights, as these decisions are embedded in a system of separation of powers and checks and balances, namely supervision of the political process by the courts. If the liberal democratic basic order relies on courts, the question still remains as to what a corresponding supervisory structure for the governance systems of private companies looks like.

The recent turn to private, self-regulatory institutions – above all the Facebook Oversight Board, but also smaller and less formalized purely advisory initiatives such as TikTok’s regional councils or Twitter’s Trust and Safety Council – will certainly remain relevant for the next few years. It remains to be seen, however, whether such institutions carry sufficient clout to motivate companies to take serious steps in improving their content governance, even if this may reduce their revenue or require them to make substantial changes to their business model.

In this context, it is yet hard to imagine a democratically legitimate platform supervisory structure, given that most for-profit companies’ experiments with user participation in the past decade have been haphazard at best. However, new institutions building on such existing boards/committees, such  as user-elected or even user-composed “Social Media Councils,” may point the way. Thus, while any democratic element still requires governance innovation, the main standards against which an international or global platform’s practices and policies must be measured already exist: Companies have a “responsibility to respect” human rights under the UN Guiding Principles for Business and Human Rights, including obligations to provide  “grievance mechanisms,” i.e. quasi-judicial redress opportunities that must be legitimate, accessible, predictable, equitable and transparent, and whose outcomes and remedies must accord with internationally recognized human rights.

While these principles lack a “hard” enforcement mechanism, the soft-law standard unanimously endorsed by the UN Human Rights Council carries moral weight. With increasing numbers of companies committing to abiding by these rules as “higher” principles above their Terms of Service, Community Guidelines and practices, they are gradually subjecting themselves to a standard that they cannot change at will. This a reconfiguration of rule-of-law-like requirements is having a growing impact, even though “hard” consequences are rare, and violations can only be sanctioned by PR backlash.

If such soft, self-regulatory approaches fail to deliver, the need for an appropriate containment and separation of the current power concentration at private platforms  will likely be articulated through a different channel. We can expect more invasive regulation, be it within the upcoming European Digital Services Act or through national laws such as Germany’s 2021 update to its landmark Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG). While initially the NetzDG only covered companies’ handling of criminally unlawful content, it was amended in 2021 to also include procedural obligations for removals that are only based on companies’ private terms of service (§ 3 para. 3 NetzDG).

What Can Go Wrong: The Danger of Power Abuse

We stress that while the concepts of “liberal democratic basic order” and “militant democracy” currently enjoy broad acceptance and support within key parts of German society, this has not always been the case. They used to be and are still subject to extensive debate and criticism. While these critical discussions cover a broad range of various points, this article wishes to highlight one central aspect: The terms of human dignity and democracy as laid out in the liberal democratic basic order are abstract, and always require interpretations which have been and will continue to be contested. Their necessity opens up the potential for introducing an interpretation which identifies the presiding political camp as based on the liberal democratic basic order, while accusing the opponent political camp of posing to it a fundamental threat. In a worst-case scenario, it is the political camp in power that uses the mechanisms of militant democracy to attack and silence legitimate political opposition, thereby undermining one of the key features of a democratic system. The reality of this risk has been evident in Germany, for example in heated debates of the 1950s, 1960s and 1970s around controversial legislation, practices and decisions, most of which were shaped by the prevalent spirit of anti-Communism at that time.^[5]

In assessing the usefulness of the FDGO and wehrhafte Demokratie as an inspiration for platform governance, of course, this risk and Germany’s negative experiences with the concepts (which are certainly existent, even if the overall experience is a positive one) must be considered and addressed as outlined in the previous chapters: An emphasis on building democratic resilience, a risk-based intervention approach, and finally, a separation of powers.

Conclusion and Outlook

The Internet has changed the opportunity structure for authoritarian actors across many contexts and has emerged as a crucial space for them to operate – a key element to their success. In order to address the threats to democracies associated with these developments, we must make explicit choices in assessing, countering or even silencing authoritarian voices on platforms, yet without becoming authoritarian ourselves. Basically, this poses no new challenge: Democracies have always struggled to protect themselves against authoritarian actors abusing democratic means to undermine democracy from within. Fighting such developments, while preserving minority rights and without becoming autocratic themselves, has always been a major concern.

The reaction to this challenge that the German Basic Law anticipates provides useful insights for negotiating this balancing act: Its concept of a value-based, militant democracy is equally centered around the two central pillars of human dignity and fundamental rights (“liberal”) and the idea that all power emanates from the people (“democratic”). Applying this concept to platform governance, it becomes clear that democratic rights like freedom of expression on platforms must generally be protected, yet at the same time, they are not absolute, and must not be abused to undermine the commitment to democracy and/or human dignity.

Following the idea of a militant democracy, in case of an attack on democracy and/or human dignity, both must be defended. For this purpose, the concept of militant democracy offers two overall approaches: Repressive measures as well as building democratic resilience. Transferred to the field of platform governance, these two approaches highlight the importance of two complementary types of instruments. Repressive instruments such as content deletion, demonetization or downranking focus on those posing the threats. Resilience instruments, on the other hand, strengthen democratic actors in the battle of democratic persuasion, using strategies such as the implementation of media literacy and civic education initiatives, and (design) initiatives to increase visibility of democratic actors on platforms and the support for victims of hate and extremism. It is worth reiterating that the liberal democratic basic order clearly focuses on a democratic persuasion approach and sees repressive interventions only as a last resort. The development of these concepts in Germany over time shows the importance of adequate risk-based interventions: Countermeasures must be taken in proportion to the degree of threat.  As the level of threat changes, countermeasures must be adjusted accordingly. This principle also holds true for platform governance, for example with regard to threats such as the mainstreaming of authoritarian narratives, the silencing of minorities or the incitement of violence.

The liberal democratic basic order, which strongly underlines the separation of powers, highlights the need to develop platform governance frameworks that implement checks and balances and procedural rights and obligations (e.g. redress mechanisms). Here, concepts like social media councils and mini-publics, as well as an appropriate mixture of public and private ordering, might point the way. Particularly in this context, it is important to underline that this idea of a militant democracy obviously contains a considerable potential for abuse and that this potential must be addressed. In terms of platform governance, this means: The FDGO and wehrhafte Demokratie can inform the design of repressive governance interventions and even justify their necessity to fight off actors abusing democratic means. However, this only holds true if these repressive interventions are embedded in a governance framework that also implements the outlined security mechanisms (restrained use of repressive interventions and emphasis on building democratic resilience, risk-based interventions, separation of power), which are meant to prevent an abuse of such repressive interventions.

We are very aware that the concept of a successful national constitution cannot be universal. While it may have proven useful in the German context, it may be less effective or be substantially detrimental in other contexts. Thus, even though this approach to platform governance may not be suitable for every country or region, we hope that it can yet serve as a useful piece in the puzzle of a future global digital constitutionalism.

The lessons the German constitutional system has drawn from the country’s uniquely dark past – containing authoritarianism while safeguarding democratic change – can provide useful insights for designing platform governance systems. We believe that implementing and strengthening appropriate safeguards to prevent abuse of power must be among the next steps taken for improving states’ as well as companies’ platform governance practices and policies. While steering democracies through the stormy waters of online discourses remains extremely complex, we do think that the German perspectives of the liberal democratic basic order and militant democracy are valuable in assessing if and how to stop those who rock the boat as it moves forward.