The EU Online Terrorism Regulation: A Bad Deal

Together with many other civil society groups, we voiced our deep concern over the proposed legislation and stressed that the new rules would pose serious potential threats to fundamental rights of privacy, freedom of expression.

The message to EU policymakers was clear:

·  Abolish the one-hour time frame for content removal, which is too tight for platforms and will lead to over removal of content;

·  Respect the principles of territoriality and ensure access to justice in cases of cross-border takedowns by ensuring that only the Member State in which the hosting service provider has its legal establishment can issue removal orders;

·  Ensure due process and clarify that the legality of content be determined by a court or independent administrative authority;

·  Don’t impose the use of upload or re-upload filters (automated content recognition technologies) to services under the scope of the Regulation;

·  Exempt certain protected forms of expression, such as educational, artistic, journalistic, and research materials.

However, while responsible committees of the EU Parliament showed willingness to take the concerns of civil society groups into account, things looked more grim in Council, where government ministers from each EU country meet to discuss and adopt laws. During the closed-door negotiations between the EU-institutions to strike a deal, different versions of TERREG were discussed, which culminated in further letters by civil society groups, urging the lawmakers to ensure key safeguards on freedom of expressions and the rule of law.

Fortunately, civil society groups and fundamental rights-friendly MEPs in the Parliament were able to achieve some of their goals. For example, the agreement reached by the EU institutions includes exceptions for journalistic, artistic, and educational purposes. Another major improvement concerns the definition of terrorist content (now matching the narrower definition of the EU Directive on combating terrorism) and the option for host providers to invoke technical and operational reasons for non-complying with the strict one-hour removal obligation. And most importantly, the deal states that authorities cannot impose upload filters on platforms.

The Deal Is Still Not Good Enough
While civil society intervention has resulted in a series of significant improvements to the law, there is more work to be done. The proposed regulation still gives broad powers to national authorities, without judicial oversight, to censor online content that they deem to be “terrorism” anywhere in the EU, within a one-hour timeframe, and to incentivize companies to delete more content of their own volition. It further encourages the use of automated tools, without any guarantee of human oversight.

Now, a broad coalition of civil society organizations is voicing their concerns with the Parliament, which must agree to the deal for it to become law. EFF and others suggest that the Members of the European Parliament should vote against the adoption of the proposal. We encourage our followers to raise awareness about the implications of TERREG and reach out to their national members of the EU Parliament.

Jillian C. York is director for international freedom of expression at EFF. Christoph Schmon is international policy director at EFF.This article is published courtesy of the Electronic Frontier Foundation (EFF).