On 18 May 2017, the European Parliament Committee on Internal Market and Consumer Protection (IMCO) and the Committee on Industry, Research and Energy (ITRE) adopted a report on the Online Platforms and the Digital Single Market.
What’s good in the Report?
The report contains some positive aspects. It asks for online platforms’ terms and conditions to be fair and presented in a user-friendly way, in order to increase trust. It also asks for the possibility for users to “withdraw their consent to individual provisions without forfeiting their complete access to a service”. This is important, as sometimes (pretty much always, in fact) services’ functionality is affected when users choose not to give an “all or nothing” consent. The Report acknowledges the safeguards contained in the E-Commerce Directive against a general obligation for online platforms to monitor users’ content and only act whenever they become aware of illegal content or activities. This is important in view of the continuous requests made in the EU to push online platforms to regulate content without any counterbalancing obligation to duly respect the rule of law and fundamental rights, including users’ freedom of expression and opinion online.
In line with a similar recent request from 24 Members of the European Parliament (MEPs), the report calls for further clarity and predictability about what these companies are supposed to do when dealing with online content. The report asks the European Commission for further guidance in the implementation of the intermediary liability and the take-down procedures. This is needed, as the Charter of Fundamental Rights of the European Union is not being duly respected with regard to the necessity, proportionality or predictability of restrictions of freedom of expression rights. Uncertainty drives platforms to excessive, disproportionate restrictions of users’ communications.
The report also addresses the trendy topic of “fake news”, even if it does not attempt to define what “fake news” refers to. However, we welcome the fact that the report stresses that “the free exchange of opinions is fundamental to democracy and that the right to privacy also appl[ies] in the social media sphere”. In addition, it “highlights the value of the free press in order to provide citizens with reliable information”.
What’s bad in the Report?
The report welcomes the problematic EU Code of Conduct on hate speech. This code does not ask the signatory companies, Youtube, Facebook, Twitter or Microsoft, to apply the law, but their terms of service. This is leading to a non-consistent application of the law within the EU and to the removal or restriction of perfectly legal content.
The report welcomes the ongoing work on the Audiovisual Media Services Directive (AVSMD), urging online platforms to “strengthen measures to tackle illegal and harmful content online”. This means that the report is in favour of private companies taking action against illegal, as well as legal content. Such measures are inappropriate in a rule of law system, as the EU is supposed to be. More precisely, it in fact overturns important principles of freedom of expression and European Court of Human Rights case law, for example that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”. If our leaders in 1950, with the horrors of the Second World War fresh in their minds, were brave enough to adopt the European Convention on Human Rights, on which this case law is based, we deserve leaders in 2017 that can be equally brave.
So now what?
The next step is for the European Parliament to vote on the joint report of the two Committees. The vote is provisionally scheduled on 12 June at the time of writing. All MEPs can suggest modifications to the report. Non-legislative files are just political statements. This report – that will eventually become a European Parliament’s non-legislative resolution – will not be legally binding and therefore won’t create any legal obligations for online platforms. However, it can push certain agendas – for better or worse.
ENDitorial: Commissioners’ oath – a broken promise on fundamental rights (17 May 2017) https://edri.org/enditorial-commissioners-oath-a-broken-promise-on-fundamental-rights/
Audiovisual Media Services Directive reform: Document pool (15 May 2017)
MEPs want notice and action directive: Open letter sent to Commissioner Ansip (10 My 2017)
AVMS Directive: It isn’t censorship if the content is mostly legal, right? (27 April 2017)
New documents reveal the truth behind the Hate Speech Code (7 September 2016)
(Contribution by Maryant Fernández Pérez, EDRi, and Vincenzo Tiani, EDRi intern)