Denmark will issue removal orders without court approval: Impacts on free speech and pro-Palestinian voices

In 2022, the Danish government proposed to designate the Danish National Police as the competent authority for issuing removal orders under the TCO Regulation. However, a majority in the Danish Parliament amended the government’s draft law to require prior court authorisation in order to protect freedom of expression. This amendment was recommended in consultation responses from EDRi member IT-Pol Denmark, the Danish Institute of Human Rights and the Danish Bar and Law Society. Currently, Denmark and Malta are the only Member States where an independent authority (courts) has been designated as the competent authority for removal orders.

Court review sacrificed in new antisemitism package

However, the independent oversight of removal orders will soon disappear in Denmark. On 25 June 2024, the government presented a political agreement on strengthened efforts against antisemitism, backed by all parties in Parliament, where one of the 12 initiatives is to repeal the requirement of prior court authorisation for removal orders in the TCO law. According to the agreement, the intention is to strengthen the use of the TCO Regulation by Danish authorities (the police) as part of the efforts against antisemitism.

The short text of the agreement does not explain how removing safeguards for protecting fundamental rights can actually ”strengthen” anything in relation to the fight against antisemitism. On the contrary, the prior court review provides critical legitimacy to the enforcement of the TCO Regulation, as it protects against arbitrary use of the power to order content removed from the internet based on a broad definition of what constitutes terrorist content. Moreover, the government presents no evidence that the current court order requirement has represented any impediment to the use of the TCO Regulation by the Danish police. In fact, like the majority of EU Member States, Denmark has so far not even made use of the TCO Regulation: since entry into application in June 2022, Denmark has issued zero removal orders.

The proposal to abolish independent review of removal order after just two years of (non-)experience with the TCO Regulation is highly premature for another reason. In France, a coalition of six organisations, led by another EDRi member La Quadrature du Net, has filed a complaint before the Conseil d’État against the French decree implementing the TCO Regulation. The organisations are asking the Conseil d’État to request a preliminary ruling from the Court of Justice of the European Union (CJEU). If the CJEU rules that removal orders must be approved by a court in order to be compliant with the Charter of Fundamental Rights, the Danish Parliament will have to revise the TCO law again.

Risk of arbitrary censorship of pro-Palestinian content online

Between June 2022 and December 2023 only six Member States have issued removal orders, and 70% of the total 349 orders have been issues by Germany after 7 October 2023, according to the Commission’s delayed implementation report from February 2024. Denmark has not issued any removal orders and moreover ignored the obligation in Article 8 to publish an annual transparency report, suggesting a very low interest in the TCO Regulation. With the political agreement, it is likely that the Danish government is planning to significantly step up the use of the TCO Regulation as one of the measures against antisemitism.

Other parts of the political agreement lend support to that assumption. One of the 12 initiatives includes research funding for studying the “new antisemitism” generated by contempt for the State of Israel. If this broader definition is also employed by Danish authorities in the fight against antisemitism, there is a clear risk of conflating antisemitism (defined as hostility to, prejudice towards, or discrimination against Jews) with legitimate opposition to the conduct of the State of Israel, for example the long-standing occupation of the Palestinian territories and the current well-founded accusations of genocide in Gaza.

The outcome could be arbitrary censorship of pro-Palestinian voices on social media, where the official EU terrorist designation of Hamas, along with the broad definition of terrorist content in the TCO Regulation, provides the formal legal connection for issuing removal orders when platforms do not voluntarily remove the notified content (the so-called referrals which EU Member States continue to prefer over removal orders). The Danish Internet Referral Unit operates in complete secrecy and, unlike Europol and other Member States, does not publish an annual transparency report with the number of referrals.

Contribution by: Jesper Lund, Chairman, EDRi member, IT-Pol Denmark