trilogues

Antiterrorists in a bike shed – policy and politics of the Terrorist Content Regulation

co-authored by Diego Naranjo, Head of Policy at EDRi

Analysis

In the second installment of series of longer features on our blog we analyse the political process around the terrorist content debates and key factors influencing the outcome.

The short story: an ill-fated law with dubious evidence base, targeting an important modern problem with poorly chosen measures, goes through an exhausting legislative process to be adopted without proper democratic scrutiny due to a procedural peculiarity. How did we manage to end up in this mess? And what does it tell us about the power of agenda setting the name of the “do something” doctrine?

How it started – how it’s going

A lot of bafflement accompanied the release of the Terrorist content regulation proposal. The European Commission published it a few days after the September 2018 deadline to implement the Directive on Combating Terrorism (2015/0625). It is still unclear what the rush was with the regulation if the preceding directive hadn’t got much traction. At that time, only a handful of Member States met the deadline for its implementation (and we don’t see a massive improvement in implementation across the EU to this day). Did it have to do with the bike-shed effect pervading modern policy-making in the EU? Is it easier to agree on sanitation of the internet done mostly by private corporate powers, than to meaningfully improve actions and processes addressing terrorist violence in the Member States?

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E-Evidence: trilogues kick off on safeguards vs. efficiency

The Regulation on European production and preservation orders for electronic evidence in criminal matters (E-Evidence) aims to create clear rules on how a judicial authority in one Member State can request electronic evidence from a service provider in another Member State. One such use case would be requesting user data from a platform in another EU country during an investigation. We wrote about our main issues in the past.

What Wikimedia worries about

At Wikimedia we were originally  worried mainly about a new data category – access data. This would mean that prosecutors would be able to demand information such as IP addresses, date and time of use, and the “interface” accessed, without judicial oversight. In the Wikipedia context, however, this information would also reveal which articles a user has read and which images she has looked at. 

The second aspect we care about is whether the service provider’s hosting country’s authority will have the right to intervene in some cases where fundamental rights of its citizens are concerned. We know that unfortunately not all EU Member States have good rule of law records, which calls for safeguards at least  against potential systemic abuse. Again, knowing which Wikipedia articles or which Wikimedia Commons images someone opened is information that should be hard to get and only in rare and well justified cases.

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TERREG: trilogue brings compromise in final weeks of German Presidency

Perhaps it was it the perspective of “losing face” by transferring this hot potato of a proposal to the next Presidency that created the pain point to press with the hosts of the negotiations. The European Parliament delegation managed to get quite a few of the issues they wanted ironed out and there will be no more trilogue on the proposal for the terrorist content regulation.

We bring you an update on what is the final outcome of the negotiations, what happens next, and a bit of a summary of what it means for us Wikimedians and for the world at large.

Successes and problems

1. Exception for journalists, artistic and educational purposes

Under pressure from the EP, journalist associations, and (hopefully) us, the doubtful legitimacy check of what is journalism, artistic expression or accepted research has been dropped. Article 1(2)(a) will exclude material disseminated for educational, journalistic, artistic or research purposes from the scope. Moreover, purposes of preventing or countering terrorism shall not be considered terrorist content including the content which represents an expression of polemic or controversial views in the course of public debate. Sounds like the most obvious obviousness, but hey – Twitch already deletes content denouncing terrorism to avoid the trouble. This provision plus those pointing at respecting fundamental rights while implementing measures can be interpreted in a way that actually coerces Twitch to stop deleting it.

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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. 

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