The European Parliament is currently working on a non-binding Resolution on terrorist “radicalisation”. As is usual with such instruments, little attention is being paid to the initiative, because it is not binding legislation. Nonetheless, it will be a formal position of the European Parliament, and it’s important that the outcome will show adequate concern for fundamental principles of European law and values.
In the initial draft, the Parliamentarian in charge, French conservative Rachida Dati, proposed a rather strict wording regarding internet intermediaries. She suggested in particular that Member States should consider criminal sanctions in cases where “internet giants” do not react to “circulation of illicit messages that defend terrorism” (in French: “diffusion de messages illicites et faisant l’apologie du terrorisme”) on their online platforms. Although “illicit” and “illegal” are not synonymous in all EU countries, the word “illicit” in the draft report appears to be used as a synonym for “illegal”, as an intermediary could hardly be held criminally liable for something that is not illegal.
However, the formal English translation from the European Parliament changed this to “illicit messages or messages praising terrorism on their internet platforms”. The word “or” creates an entirely new meaning. The suggestion would now be that “internet giants” would be held liable for failing to act in relation to illicit (illegal) content, but also in relation to content which is legal in some Member States.
What happened next was surprising. Instead of asking how Ms Dati was suggesting making internet companies criminally liable for material which was not illegal (which she originally was not), Parliamentarians from across the political spectrum tabled amendments which left this text unchanged. Not one single voice was raised in relation to the various mistranslations (such as into German, Finnish and English) before the amendments were tabled. With English being the lingua franca in the European Parliament, the discussions simply took over this new and legally incoherent meaning.
Ms Dati, bending to the apparent will of the majority of Members of the European Parliament (MEPs), who proposed amendments based on the English mistranslation, has now proposed a compromise text for approval by the other political groups. The proposed compromise suggests that the European Parliament “believes that the Member States should plan for the possibility of bringing criminal prosecutions against digital operators who do not take action in identifying and deleting manifestly illegal messages or messages praising terrorism on their internet platforms”. Ironically, while suggesting that internet companies be coerced, by the threat of criminal prosecution, into arbitrarily deleting legal content, the compromise also says that this should happen “with full respect for the rule of law, fundamental rights and the freedom of expression”. How would that be possible in practical terms?
Civil Liberties Committee Draft Report (FR) on prevention of radicalisation and recruitment of European citizens by terrorist organisations (2015/2063(INI)) (01.06.2015) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-551.968%2b01%2bDOC%2bPDF%2bV0%2f%2fFR
Civil Liberties Committee Draft Report (EN) on prevention of radicalisation and recruitment of European citizens by terrorist organisations (2015/2063(INI)) (01.06.2015) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE-551.968%2b01%2bDOC%2bPDF%2bV0%2f%2fEN
EDRi-gram: European Parliament – translating freedoms into Chinese (29.07.2015)
(Contribution by Joe McNamee, EDRi)