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EU: Unprecedented, far-reaching EU regulation on preventing terrorist content online endangers freedom of speech and of the media as well as the online community

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05 November 2020

Press release from Patrick Breyer MEP (Pirate Party Germany, Greens/European Free Alliance) on the proposed Regulation on preventing the dissemination of terrorist content online. Negotiations between the Council and Parliament are close to being finalised, but many dangerous provisions remain in the text, which is being pushed through in the wake of recent terrorist attacks.

PRESS RELEASE

Brussels, 05/11/2020

Unprecedented, far-reaching EU regulation on preventing terrorist content online endangers freedom of speech and of the media as well as the online community

The EU is set to adopt this unprecedented anti-terror legislation which will heavily impact on everybody operating a website, Internet users, media freedom, freedom of the arts and sciences, and freedom of speech.

- Authorities in all EU Member States (including those with a poor fundamental rights record) will be able to order website operators and service providers to remove allegedly terrorist content within one hour or face penalties. Anti-terror laws have in the past been used by some EU member states against Catalan separatists, social protest, ecologists and immigrants. The timeframe of 1 hour cannot reliably be met by small platforms. Non-commercial or private websites are included in the scope. Small website operators would need to be reachable 24/7 to react to removal orders within 1 hour (even at night). The likely effect is that small websites will be forced to close and be replaced by a Facebook group, where Facebook has to take care of removing content within 1 hour.
- The definition of "terrorist content" is rather vague and open to interpretation.
- Providers could also be obliged to filter content proactively, resulting in overblocking of legal content because algorithms cannot tell propaganda apart from legitimate uses of images/videos e.g. for journalistic purposes.

While the European Parliament last year adopted a position that took into account most concerns from civil society and industry, it is in the process of sacrificing much of this to find agreement with Council after recent terrorist attacks.

The European Parliament has already made far-reaching and problematic concessions in the negotiations:

1) Acceptance of the very short 1-hour deadline for removing content after receiving a removal order
2) Acceptance of the voluntary use of the error-prone upload filters by service providers
3) Abandoning the requirement of independence of the competent authorities, even though removals ordered by ministers can be politically motivated
4) Abandoning resistance to cross-border removal orders, meaning that problematic governments such as Hungary's can order removals of content hosted anywhere in the world

There is also no agreement on important safeguards the European Parliament is still calling for:

• Governments seek to expand the already wide definition of „terrorist content“ to also cover "otherwise supporting" terrorism, which would be very far-reaching
• There is no agreement by national governments (Council) to exclude from the scope content which is disseminated for educational, artistic, journalistic or research purposes, or for awareness raising purposes against terrorist activity, or content which represents an expression of polemic or controversial views in the course of public debate (Member States only want to exclude such content if "legitimate")
• Referrals: There is no agreement by national governments (Council) to delete a provision that would allow authorities to alert providers to content "for their voluntary consideration". Providers would assess these referrals according to their often vague and far-reaching terms and conditions instead of the law.
• There is no agreement by national governments (Council) to rule out an obligation on providers to deploy error-prone upload filters. In the absence of such a provision, the general language obliging providers to "detect and identify" terrorist content would entail an obligation to use those algorithms which cannot reliably distinguish terrorist propaganda from legitimate uses of images/videos.
• There is no agreement by national governments (Council) to limit penalties to „systematic and persistent“ violations, so that providers would be hit with fines even for the first infringement. There is also no agreement to exclude fines for providers that cannot comply with removal orders within one hour for technical or operational reasons (e.g. small providers outside business hours). If no solution is found here, these excessive penalties could be used to force services to close down.
• The European Parliament has, by majority, agreed to the removal of content hosted in one country where ordered by authorities of any other EU country ("cross-border removal orders"). There is still no agreement by national governments (Council) on whether the hosting country would have to review foreign orders for their legality and decide on confirmation, whether the content provider or the service provider could request such review, and whether a lawsuit against a cross-border removal order could be filed in the country where the hosting service provider is located rather than the country of the issuing authority.

I have worked hard to make sure that fundamental rights are respected, to prevent the regulation being annulled by the Courts as has happened to a similar French law (AVIA) which was annulled by the French Constitutional Court (see par. 7 of that judgement on a similar removal mechanism). An annulled regulation is the least effective of all means to address terrorist content online. Also we need to keep the burden on businesses and European providers bearable and make sure it is not only major US corporations that can meet the requirements.

In last week's trilogue negotiation, Parliament and Council were close to a deal. There will be another trilogue next week where likely a "compromise package" will be agreed.

Find more details in recently leaked documents on the negotiations:

<https://cdn.netzpolitik.org/wp-upload/2020/09/23_SEP_2020_4_Kolumnen.pdf>
<https://cdn.netzpolitik.org/wp-upload/2020/10/DE-Vorschlag-zu-Terror-Inhalte-Verordnung.pdf>