How the Rule of Law Aims to Arm Itself Against Deepfakes and Tech Giants

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At the “UdL Digital Talk” in Berlin's Basecamp on Tuesday, two worlds met, both targeting the same adversary but arguing about the nature of their armament: politics, represented by Federal Justice Minister Stefanie Hubig (SPD), and legal practice, in the person of prominent lawyer Christian Schertz. The urgent theme of the evening: democracy must remain defensible. But in the age of AI, according to both discussants, it must learn to show a “clear stance” faster and more decisively.

Schertz left no doubt that he considers the German legal system to be one of the best in the world and that many nations envy German citizens their Basic Law. However, admiration for the foundation quickly turned into alarm when it came to everyday life online. Angry citizens, deepfakes, and fake news form a toxic mix that “Germany's most famous lawyer” describes as a “great danger to democracy.” The phenomenon of AI-generated content as enabled by tools like Elon Musk's Grok via X is a particular concern for both. Here, phenomena are spread that can “digitally undress” people – according to Hubig, 90 percent of them women.

Schertz's accounts from his legal practice sounded like a fight against windmills. When clients like Günther Jauch or Markus Lanz advertise knee ointments or dubious financial products in deceptively real deepfake videos, it has long been a big business. “The state must act now,” demanded Schertz, as legal enforcement against US tech giants often proves futile. Even if Google & Co. delete illegal content, it immediately reappears elsewhere. Platform operators should therefore be forced to use filters against it.

In the USA, "freedom of speech" trumps everything, the controversial lawyer complained. This extends to allowing Koran burnings. Europe, however, comes from a humanist legal tradition that protects the individual and their dignity more strongly. But in practice, the corporations with their EU branches are located in Ireland. Serving lawsuits there is often barely possible since the Digital Services Act has replaced the NetzDG in most respects.

Data Retention Protecting Anonymity?

The minister countered that the state cannot compete with the speed of criminal energy. However, it must improve. She emphasized the fine line between freedom of art and opinion on the one hand and punishable content on the other. Opinions that one does not like are also protected by the Basic Law, as long as they do not cross the line into criminality. To close gaps here, her ministry is currently working on a Digital Violence Protection Act.

According to the trained judge, the EU level is particularly in focus: Commission President Ursula von der Leyen is already investigating proceedings against the platform X for Grok. Hubig further explained: court orders could in the future lead to accounts being completely blocked for a certain period in case of repeated legal violations.

Another controversial point was the question of identity online. Schertz openly advocated for a real name obligation: those who “hate” should also state their name. Hubig, on the other hand, argued that anonymity online must fundamentally remain possible.

However, her reasoning contained a logical contradiction: to prosecute criminal offenses, the Social Democrat relies on the retention of IP addresses. She suggested that users could remain anonymous even if the state ordered the indiscriminate logging of user traces. In fact, according to data protection advocates, such widespread storage of internet identifiers would make the digital person transparent and undermine the promise of being invisible online.

With fake accounts on Social Media

There was a strong human element when both panel participants admitted to “lurking” on Instagram with “fake accounts” themselves. Schertz does this to discreetly monitor what his clients from show business and politics are saying. Hubig also confessed to being a secret reader without her posts. In the context of the debate about surveillance and identification, this confession cast a revealing light on the ambivalent attitudes of the actors.

The discussion also revolved around the foundations of democracy. Schertz warned against leaving popular rule to its enemies. The current situation, he said, was the “last cartridge of democracy.” The jurist advocated for an AfD ban procedure to utilize existing rule-of-law instruments. Hubig was more cautious. Such a procedure, she said, was “the sharpest tool of the Basic Law” and must be extremely well prepared, as the consequences of failure would be devastating. Politics must first await the decision of the Higher Administrative Court on whether the party will be classified as reliably right-wing extremist nationwide.

Hubig Wants No Palantir

The department head also turned her attention to individual responsibility. AI development, for example, with large language models like ChatGPT, is progressing so rapidly that media literacy is becoming a question of survival for democracy. Those who uncritically accept AI results are handing themselves over to algorithms that merely pretend to “preserve” the truth. Hubig urged: All citizens who rely on the rule of law must defend themselves together. She noted, “Democratic freedoms are hard-won rights.”

Hubig also demanded, “We must rely much more on our European knowledge.” Regarding US companies like Palantir, she emphasized that their understanding of democracy is incompatible with European values. It is therefore logical that the federal government refrains from using such software. This has also been a long-standing demand of the SPD. Considering the progress of large language models, Europe must now quickly develop its own tools and programs. In general, in the IT sector, the dependence on giants like Microsoft must be sustainably reduced.

(mho)