Between policy and reality: EDRi’s assessment of the implementation challenges in the troubled Terrorist Content Online Regulation

Nearly two years have passed since Regulation (EU) 2021/784, aimed at Addressing the Dissemination of Terrorist Content Online, came into effect. During this time, the EDRi network has been engaged in assessing the Regulation’s implementation, contributing insights to the European Commission’s Call for Evidence for its evaluation. EDRi’s assessment underscores significant concerns –expressed since negotiations– regarding the Regulation’s impact on fundamental rights and its efficacy in achieving its objectives.

Consequently, EDRi advocates for withdrawing the Terrorist Content Online Regulation, proposing alternative legislation such as the Digital Services Act, which could better safeguard fundamental rights while achieving the Regulation’s goals.

What are the main points covered in EDRi’s submission?

EDRi’s submission highlights concerns regarding potential violations of fundamental rights in the Regulation’s implementation. While the text aims to enhance accountability and transparency in addressing alleged terrorist content online, EDRI argues that the Commission’s initial assessment of the text fails to adequately address the risk of unjust removals that could infringe upon rights. The submission points to signs of politicised implementation, especially in the context of Israel/Palestine. Disparities in the issuance of Removal Orders (ROs), particularly notable in Germany, are compounded by challenges in automated content moderation, raising concerns about potential censorship of protected legitimate speech.

Additionally, criticism is directed at increased pressure on digital service providers, further highlighting risks of over-enforcement and discriminatory bias. In this context, broader implications for freedom of expression and online access to information are discussed, underscoring potential violations of rights to peaceful assembly and association, particularly for vulnerable groups already targeted by counter-terrorism measures.

EDRi also expresses concern regarding the continued emphasis on referrals. This is when when governmental agencies are involved in content moderation by referring pieces of content or accounts to platforms so that they can be checked according to their terms of service rather than the applicable law. The emphasis on referrals exists despite their exclusion from the Regulation due to their negative impact on due process, public legitimacy, and fundamental rights. This preference for referrals indicates a potential decrease in the effectiveness of the law, as well as limitations in transparency, accountability, and adherence to fundamental rights. Privatising law enforcement missions raises significant concerns about the rule of law and freedom of expression, highlighting the risks associated with delegating regulatory power to commercial entities.

Additionally, EDRi’s submission questions the effectiveness of the Regulation in achieving its stated objectives. Any comprehensive evaluation must consider indicators beyond the number of ROs issued, mainly when this figure is overshadowed by the significantly larger number of removals reported by service providers. Moreover, the submission argues that the Regulation’s enforcement lacks clear evidence linking exposure to alleged terrorist content to radicalisation, perpetuating narrow perspectives on complex societal issues consistent with concerns raised in other EU legislative initiatives.

Criticism is also directed at the implementation of the Regulation by Member States, particularly regarding concerns about its underutilisation, compounded by signs of inadequate knowledge and preparedness among designated competent authorities. Doubts extend to Europol’s role despite assertions of effective coordination. EDRi underscores the potential invalidation of the Regulation, exemplified by a complaint lodged by some EDRi network members against the French decree implementing the Regulation due to a lack of independent oversight.

Moreover, EDRi expresses concerns about disparities in service providers’ ability to meet transparency requirements outlined in the Regulation, raising fears of further consolidating large platforms’ dominance and encouraging harmful actors to migrate to alternative platforms, notably non-compliant ones like Telegram. Lastly, EDRi highlights serious concerns about delays in preparing the Regulation’s Evaluation Report, compounded by a lack of transparency, available data, and comprehensive and meaningful engagement with stakeholders throughout the implementation process.

The Regulation’s unsatisfactory enforcement reveals significant concerns regarding its impact on fundamental rights and effectiveness in combating online terrorism. Recommending its withdrawal favouring the Digital Services Act, EDRi emphasises the urgent need for more robust safeguards and transparency. Policymakers must prioritise dialogue to develop legislation that meaningfully balances security needs with respect for fundamental rights.