By Diego Naranjo

I am convinced that the only effective way to tackle terrorism is firmly rooted in the respect of fundamental and human rights.

EU Security Union Commissioner Sir Julian King, 14 November 2016.

Closed-door negotiations (“trilogues”) on the Regulation to prevent the dissemination of terrorist content continue in Brussels. After our open letter from December things have moved on fairly slowly at first, but, recently, new texts are quickly being discussed in order to try to reach an agreement soon. Nonetheless, according to MEP Patrick Breyer, many key issues remain open for discussion.

The Regulation, heavily criticised in its original proposal by the EU Fundamental Rights Agency, the European Data Protection Supervisor (EDPS) and UN Special Rapporteurs because of its potential impact on privacy and freedom of expression, is one of the key pieces of legislation to be negotiated during 2020. If not done correctly, the Regulation could lead to imposition of “terror filters” that could take out legitimate content because filters cannot understand context, limit investigative journalism (more information here) and become the instrument of governmental authorities to suppress legitimate dissent under the pretext of the fight against terrorism.

The European Parliament successfully included in the Report from the Civil Liberties Justice and Homes Affairs (LIBE) Committe some of the main safeguards we demanded. This Report also represents the position of the Parliament as a whole in the present negotiations.

The negotiators from EU Member States and the European Parliament need to ensure that the final text keeps enough safeguards as proposed in the Parliament’s Report, paying special attention to the following:

  • The definitions in the Regulation need to be clearly aligned with the ones from the Terrorism Directive and include “intent” as a core criteria to define what is “terrorist content”.
  • Competent authorities in Member States need to be independent from the executive, that is to say, not being able to seek or take instructions from any other government body when making take-down orders. Otherwise governments willing to crack on dissenting voices may be tempted to use “terrorism” as the excuse to silence them.
  • Member State authorities can have content removed directly only when the service providers are established in their jurisdiction. When the alleged illegal terrorist content is hosted by a company in another Member State, the requesting Member State needs to request that other State to remove the content. Otherwise, having extra-territorial enforcement of removal orders would circumvent rule of law mechanisms.
  • Referrals (suggestions by law enforcement authorities to check potential “terrorist” content against companies’ terms and conditions) need to be kept out of any future text to ensure the legal procedures are not subverted in the name of “efficiency”.
  • Terror filters (upload filters, re-upload filters or “proactive measures”) should not be imposed on companies, as it would be a breach of the prohibition of general monitoring obligations of the eCommerce Directive and lead to undesirable consequences regarding the use of legitimate content.
  • According to both the Parliament and the Council versions, all companies need to remove content within one hour. This rule does not take into consideration the lack of capacities of smaller companies or services provided by non-profit organisations. They cannot deal with such requests with the same capacity of internet giants. Even though it is unlikely that both institutions decide to disagree with themselves and removing the rule they both agreed during previous negotiations, it is worth bearing in mind that the rule is likely to lead to strengthening big tech companies that are the only ones capable of dealing with those requests in that very short amount of time. Smaller services could be seriously harmed by the combo of requirements by potential implementations of the Copyright Directive and this Regulation if the one-hour rule is not removed.

If this Regulation is to be adopted, policy makers need to ensure that it does not lead to the uncertainty that other vertical legislation regulating online content are creating. If the text does not take on board the voices of journalists, human rights groups, the EU Fundamental Rights Agency and three UN Special Rapporteurs, we risk setting a bad precedent for future evidence-based and human rights-centered legislation. Fortunately, there is still time to get things right. Contact your local digital rights organisation; see how to support their work in the current state of affairs.

Read more:

Terrorist Online Content Regulation: Document Pool (21.11.2018)

Committee to Protect Journalists (11.03.2020) (21.11.2018)

Human rights defenders are not terrorists, and their content is not propaganda (21.01.2020)

Lifting the veil on the secretive EU terror filter negotiations: Here’s where we stand (09.03.2020)

FRA and EDPS: Terrorist Content Regulation requires improvement for fundamental rights (20.02.2019)

Terrorist Content Regulation – prior authorisation of all uploads? (21.11.2018)

Contribution by Diego Naranjo, EDRi