EU’s flawed arguments on terrorist content give big tech more power

The implementation deadline of the so-called Terrorism Directive on blocking and removal of terrorist-related content online has only just passed (on 8 September 2018), but the Commission has already rushed to launch yet another new proposal ahead of the upcoming EU elections. The proposed draft is so flawed that the Commission is unable to properly justify it in the 146 pages of the almost comical Impact Assessment it produced.

What does the Commission think “terrorist content” is?

The proposed draft Regulation provides a very broad definition of terrorist content that is similar to – but different from – the definition in the recently adopted Terrorism Directive (currently being transposed into 27 national EU legal frameworks). The definition includes the following activities:

• inciting or advocating, including by glorifying, the commission of terrorist offences, thereby causing a danger that such acts be committed;
• encouraging the contribution to terrorist offences;
• promoting the activities of a terrorist group, in particular by encouraging the participation in or support to a terrorist group.

While the Terrorism Directive required “intention” to be part of all elements constituting terrorist offences, this draft Regulation omits this necessary requirement. Without considering people’s intentions, we risk that any communication of terrorist-related content, whether for confrontation, reporting, research or historical purposes, will be automatically deleted – with associated personal data being subject to long-term storage. In a democratic society, this is not acceptable.

What measures does the Terrorism Regulation contain?

The draft Regulation establishes three main measures:

1. Upload filters (“proactive measures”) to be implemented by companies;
2. Orders issued by (undefined) national authorities to remove or disable access to terrorist content within an hour; and
3. Referrals by national authorities, Europol or competent Union Body on the basis of terms of service violations of companies (not the law), subject to the “voluntary consideration” of the online hosting providers themselves. This will lead to de facto pressure on companies by States without any accountability or due regard to the rule of law.

What is the Impact Assessment saying to justify this proposal?

Contrary to the Terrorism Directive, the European Commission presented an Impact Assessment with its proposal for a Terrorism Regulation. The Commission has filled in 146 pages with unsupported claims, misreadings of the public consultation on illegal content online, and with many arguments that advocate against having this proposal in the first place. The impact assessment recognises that:

• Only 6% of respondents to a recent public consultation have been faced with terrorist content online – and yet, the Commission claims that we need a new Regulation to prevent its dissemination. As approximately 75% of reports to national hotlines are incorrect, this means that the actual figure is more likely to be less than 2%.
• 75% of the respondents considered the internet to be safe – but even that is not enough to stop the Commission’s political drive to push more “terrorism” legislation.
• There are difficulties to find a harmonised definition of “terrorist propaganda” – and yet, instead of conducting a public consultation on how to better define it, it launches a new instrument that won’t solve the actual issue.
• Member States have claimed that removal of content “can impair an investigation and reduce the chances of disrupting criminal activity and obtaining the necessary evidence for prosecution purposes,” and yet some of the measures proposed would lead to companies unilaterally deciding to remove content.
• That there is “rich literature” on the biases and inherent errors and discrimination that can lead to erroneous decisions in algorithmic-decision making – and yet, the Commission proposes a Regulation to implement exactly this type of measures.

Another example of non-evidence based policy-making is that the impact assessment does not provide an analysis of the costs that would entail setting up the necessary hash databases for automated content removal of content. And yet, the draft Regulation suggests this as one of the measures to be implemented in all EU Member States.

Why does the Commission propose a new Regulation now?

Despite the lack of evidence on how these measures will prevent terrorist attacks and how they will be appropriate and proportionate to conclude that the Regulation is needed, the proposal is here. It is almost like if the decision had already been made before conducting an assessment of the impact this proposal would have to actually fight terrorism.

The Directive on combating terrorism obliges the European Commission to present a report on the impact of the legislation on “fundamental rights and freedoms, including on non-discrimination, on the rule of law, and on the level of protection and assistance provided to victims of terrorism” by 2021. On that basis, the Commission is supposed to consider whether follow-up actions were needed. Instead of checking the impact of the existing legislation first, the Commission has rushed into a new proposal and is aiming to finalise it before the European Elections in May 2019.

It is regrettable that legislation is exploited to give citizens a false sense of security, while it is actually undermining their rights and freedoms.

EDRi is following this dossier very closely. As a first step, we will publish a policy paper and suggestions for amendments on the proposed Regulation in the following weeks, as well as a document pool to gather all documentation around this file.

Joint Press Release: EU Terrorism Regulation – an EU election tactic (12.09.2018)
https://edri.org/press-release-eu-terrorism-regulation-an-eu-election-tactic/

Proposal for a Regulation on preventing the dissemination of terrorist content online (12.09.2018)
http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2018/0640/COM_COM(2018)0640_EN.pdf

Impact Assessment accompanying the Proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online (12.09.2018)
https://ec.europa.eu/commission/sites/beta-political/files/soteu2018-preventing-terrorist-content-online-swd-408_en.pdf

EU Parliament’s anti-terrorism draft Report raises major concerns (10.10.2018)
https://edri.org/eu-parliaments-anti-terrorism-draft-report-raises-major-concerns/

Terrorism Directive: Document pool (24.11.2016)
https://edri.org/terrorism-directive-document-pool/

(Contribution by Diego Naranjo and Maryant Fernández Pérez, EDRi)