EDRi statement: the fundamental rights consequences of the EU media ban

European Digital Rights (EDRi) is appalled by the illegal and atrocious invasion of Ukraine by Russia’s totalitarian regime. We stand with the people of Ukraine who are forced to live in fear and flee from their homes while enduring war crimes and other large-scale human rights violations, including cyberattacks. Democratic societies that respect the rule of law should stand in solidarity with the deep suffering of people in Ukraine on many levels.

In concert with starting this unjustified war, Russia’s totalitarian regime has curtailed the last vestiges of freedom of expression in Russia. The government of Vladimir Putin is eliminating the few remaining voices of the free media, harshly suppressing the right to protest as well as applying wholesale censorship online.

As a response to the Russian Federation’s war against Ukraine – and as part of a broader package of economic and financial sanctions – the Council of the European Union has unilaterally decided¹ to ban content from Russian state-controlled media outlets from being broadcast or otherwise distributed in the EU. This ban not only prohibits operators from broadcasting content from these outlets via traditional television channels, but also to “enable, facilitate or otherwise contribute to broadcast, any [RT, Sputnik] content […] by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications” (emphasis added).

While it is entirely within the Council’s legal prerogative to impose economic and financial sanctions under the Treaties, European Digital Rights (EDRi) considers that the broad scope of this media ban sets a dangerous precedent for unilaterally interfering with the digital information environment. This does a disservice to the protection of fundamental rights in the EU.

Firstly, providers cannot (and should not be obliged to) know all of the content transmitted via their systems. In fact, Union law such as the E-Commerce Directive and the upcoming Digital Services Act explicitly exclude a general liability for online intermediaries for such cases. Otherwise, such liability rules would force intermediaries to develop and deploy automated content filtering and removal technologies which would have disastrous consequences for the fundamental rights of people in the EU, in particular freedom of expression and access to information.

Secondly, even in the context of war, measures with such far-reaching consequences on fundamental rights must at least be taken with the democratic legitimacy that only the European Parliament can provide. This EU ban should fulfil the standards of legality, legitimacy, proportionality and necessity that international human rights law requires for these scenarios. This includes the need to clearly limit in time the extent of the adopted measures that are in the scope of this statement.

Finally, in our opinion EU policies should focus on providing support for independent media and journalists in Russia and Ukraine and ensuring the free flow of news reporting across borders. This includes providing financial support for anti-censorship technology such as the Tor network.

1Council Regulation (EU) 2022/350 of 1 March 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, and Council Decision (CFSP) 2022/351 of 1 March 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L:2022:065:FULL&from=EN)