By Joe McNamee

At the Colloquium on Fundamental Rights on 2 October 2015, EU Commissioner for Justice, Consumers and Gender Equality Věra Jourová gave a widely-reported speech on “hate speech”. At the meeting, she announced that she was organising a meeting between “IT companies, business, national authorities and civil society” in order to “tackle” online hate speech.

With the drive for IT companies to bring an end to terrorism, copyright infringement, hate speech and child pornography, one could be forgiven for getting the impression that their role in society is as a benevolent, all-seeing force to fight the ills of the world. As a result, it is not surprising that these companies are listed separately from “business” in Commissioner Jourová’s speech. In reality, however, they are businesses. They are businesses with no law enforcement powers, with a business interest in making money, in advertising, in data processing, and in minimising negative press coverage.

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From a public relations perspective, Commissioner Jourová is definitely working with a winning formula. Her colleague with responsibility for Home Affairs, Commissioner Dimitris Avramopoulos is in the process of doing exactly the same thing with the same initiative with regard to the fight against terrorism. He proposed launching an “Internet forum” (that had already been initiated by the Council of the European Union) for Internet companies to fight terrorism. The initiative was announced by the Commissioner in January, June and July this year.

One of the ways that pressure can be placed on Internet companies regarding online hate speech, is to encourage them to use their terms of service to “ban” illegal messages, in addition to their own standard terms that ban various types of legal content. This means that the platforms can more easily remove any content – including illegal content – without having to actually accuse the individual posting it of doing anything illegal. That’s easiest for the platform, because an accusation of law-breaking would imply additional obligations (reporting, etc), and it’s easiest for the EU Member State and the Commission because “somebody is doing something” to address the problem. It is easier for the person uploading the hate speech, because the only “punishment” will be the deletion of a comment, which can easily be posted again the next day and the day after. Indeed, researchers from the Catholic University of Leuven found that illegal hate speech is usually spread in the hope that it will be read, reported and condemned. So, the notion of an arbitrary, lawless game of “whack-a-mole” of content being uploaded, reported, checked, deleted, re-uploaded, reported, checked and deleted again creates an obvious, but apparently irrelevant, risk of counterproductive effects.

These discussions (terrorism, led by the European Commission Directorate-General for Migration and Home Affairs and hate speech, led by Directorate-General for Justice and Consumers) are happening in parallel with two parallel consultations (on “platforms”, led by the Directorate General for Communications Networks, Content and Technology and, shortly, IP enforcement, led by the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs) on the role of Internet intermediaries and liability for illegal or unauthorised online content. In the context of these four parallel discussions, there is no debate of whether it’s appropriate to use coercion of Internet intermediaries to delete unwelcome or possibly illegal content, whether there should be safeguards to protect legal but challenging speech, whether there is a risk of counterproductive impacts on either the public policy objectives being addressed or, indeed, competition and innovation.

On the other hand, is there any need to worry about the wisdom of companies like Facebook? Is it really that arbitrary that, at one moment, they had policies that prohibited female nipples (or representations thereof), but permitted male nipples and, if surrounded by appropriate commentary, beheading videos?

Catholic University of Leuven presentation: Media Pluralism and Diversity and Combating “hate speech” (26.03.2012)
http://livestre.am/1oc0h (from 1:59.00)

Remarks by Commissioner Avramopoulos after informal Home Affairs Council in Luxembourg (09.07.2015)
http://europa.eu/rapid/press-release_SPEECH-15-5342_en.htm

Facebook lets beheading clips return to social network (21.10.2013)
http://www.bbc.com/news/technology-24608499

#FreeTheNipple uses male nipples to protest Facebook’s nudity policy (07.07.2015)
http://nypost.com/2015/07/07/freethenipple-uses-male-nipples-to-protest-facebooks-nudity-policy/

(Contribution by Joe McNamee, EDRi)

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