Upside-down: is all content terrorist until determined otherwise?

The German Presidency of the EU is accelerating the Trilogue negotiations around the terrorist content regulation (TERREG). Yet, faster doesn’t always mean better, as the German compromise text proves. The most disturbing ideas in the compromise pose an attack on freedom and pluralism of the media and of arts and sciences. Is the new text a lapse of judgment or a glimpse into how a modern EU government envisions its powers over democratic discourse and the role of tech in it?

Media and arts with the seal of approval of governments?

One of the issues with the proposal for a regulation to prevent the dissemination of terrorist content online was, from the beginning, a blurry definition of what constitutes “terrorist content”. The German Presidency proposes to exclude materials disseminated for educational, journalistic, artistic or research purposes from that definition under the condition that “the dissemination of the information is protected as legitimate exercise of freedom of expression and information, the freedom of the arts and sciences as well as the freedom and pluralism of the media”. 

This raises questions about what may or may not constitute “legitimate journalism” or “legitimate artistic expression.” And, importantly, about who gets to decide what is legitimate reporting or legitimate educational purpose. As the proposal stipulates so far, it will not be the court deciding, but competent authorities in each Member State and also the internet platforms hosting the content. 

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Terrorist clicks? drastic measures to moderate online communications under the anti-terrorist banner

What is the best way to combat terrorism? According to the European Commission, it is to clean the internet of terrorist content. Despite little clarity as to what terrorist content really is, the EU institutions are working towards a new regulation that would likely require a wide range of online services to follow the ill-designed measures – measures that would also affect Wikipedia. Yet, the lack of clear definitions, combined with proposed requirements to filter or immediately remove information, threatens democratic discourse and online collaboration.

What is this terrorist content regulation about, again?

In the autumn 2018, the European Commission (EC) published a proposal of a Regulation on preventing the dissemination of terrorist content online (TERREG) as a part of the Digital Single Market framework. Its framing suggests that curbing terrorism is not the main objective of this piece of legislation. Instead, it seeks to provide internet platforms with unified rules on how to deal with content that is considered terrorist, across the EU, and to outline consequences of their failing to comply. 

The rules boil down to a bypass of judiciary oversight in limiting freedom of expression, instead transfering that power to private actors: platforms hosting their users’ content, and content filters. All this makes it very easy to restrict access to information about unfolding civic events, which can sometimes produce violent imagery. Meanwhile, failure to remove disturbing, violent content upon notice is already punishable under the EU law and only 6% of European internet users report coming across what they perceive to be terrorist content (according to a Flash Eurobarometer poll from 2018). 

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Terrorist content and Avia Law – implications of constitutionality of TERREG in France

Analysis

In the first of series of longer features on our blog, we study the implications of national court ruling on the future of an EU regulation: in this case on TERREG.

In June 2020, France’s Constitutional Court issued a decision that contradicts most key aspects of the EU proposal for a regulation on preventing the dissemination of terrorist content online – but also gave EU legislators specific tools to prevent drafting legislations pertaining to content regulation that would directly contradict fundamental rights and national constitutional requirements.

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Introduction

Over the course of the past two years, France had a lively debate on a draft bill to combat hate speech online (the so-called Avia law). The debate mainly revolved around imposing stricter content removal obligations for both platforms and other intermediaries such as hosting providers. The final law, passed in May 2020, included the obligation for hosting providers to remove terrorist content and child sex abuse material within the hour of receiving a blocking order by an administrative authority. The law also foresaw a 24-hour deadline for platforms to remove hate speech content, based on flagging by either a user, or trusted flaggers – based on the platforms’ own judgement and with the help of technical measures. This content removal activity was supposed to be subject to guidelines that were to be established by the French Media Regulator (CSA). 

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4 things EU legislators can do to not break the internet (again)

co-authored by Jan Gerlach

The European Commission’s proposal for a Regulation on preventing the dissemination of terrorist content online runs the risk of repeating many of the mistakes written into the copyright directive, envisioning technological solutions to a complex problem that could bring significant damage to user rights. The proposal includes a number of prescriptive rules that will create frameworks for censorship and potentially harm important documentation about terrorism online. It would further enshrine the rule and power of private entities over people’s right to discuss their ideas.

However, there are still ways to shape this proposal to further its objectives and promote accountability. The report on the proposal will be up for a vote in the Civil Liberties and Justice Committee (LIBE) in the European Parliament on 8 April, and Wikimedia urges the committee to consider the following advice:

1. Stop treating the internet like one giant, private social media platform

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