EU's Never Ending Quest To Rip The Internet And Free Expression To Shreds Continues With The Terrorist Content Regulation

Legal Issues

from the it's-not-good-folks dept

Many of us are still getting over the insanity of the EU’s Copyright Directive decision, and already we need to worry about the next awful EU regulation on the horizon: the EU’s Terrorist Content Regulation which is significantly worse than even Article 13/17 of the Copyright Directive, and will create a massive stifling effect on free speech on the internet.

Over at Stanford, Daphne Keller has put together a depressing, but thorough, look at how the Terrorist Content Regulation will allow the most censorial government officials to silence speech across the EU, and possibly around the world.

We’ve discussed some of the details in the past (and on a podcast), but one of the key parts of the law is that it will require any website to take down content deemed to be terrorist content within one hour, based on demands from “competent authorities” within countries (don’t even bother trying to figure out who is a “competent authority,” it’ll drive you crazy.)

Another, perhaps equally (or more) concerning, is that the regulation seeks to promote platform terms of service over the rule of law. As I’m sure you know already, platform terms of service do not need to match up with local laws, and platforms can be much more free to block or ban any kind of content as a violation of a particular term. The EU’s plan here elevates the power of the terms of service, by allowing “competent authorities” (those guys again!) to tell platforms that certain content is in violation of their terms, requiring companies to review the content and potentially remove it or face liability. And you know what that will lead to: widespread censorship.

Keller’s piece focuses on this “TOS over rule of law” aspect of the Terrorist Content Regulation to highlight how it will effectively allow the most censorial in a position to spread their censorship across the EU. Effectively, because if platforms disagree with a “referral” concerning their Terms of Service, they face incredibly onerous conditions in response:

The Regulation provides two tools for national authorities. The first, and easiest for all concerned, is a Referral, which requires the platform to expeditiously review content under its Terms of Service. The second is a binding Order. Orders require the platform to take content down, based on authorities? determination that it violates the law. Referrals are the easiest choice for law enforcement, because they involve little or no legal analysis and the paperwork is simpler. They?re easier for platforms as well ? and complying helps maintain good relationships with authorities.

Beyond these basic and to some extent pre-existing incentives, the Regulation adds major new ones. A platform that rejects a Referral and receives an Order is effectively choosing to accept major and unpredictable new obligations. For smaller platforms that have not already invested in content filters, getting an Order (or in some drafts several Orders) triggers the obligation to build them. That?s costly for any company, and may be financially insupportable for small ones. Companies that receive Orders also assume a new and poorly-defined relationship with authorities. They must submit annual reports describing their filtering efforts, and make engineering or product design changes if authorities aren?t satisfied. Since no one knows for sure who these new de facto regulators will be or how well they will understand available technologies, it?s hard to predict what they?ll ask for.

The best way for platforms to avoid these costs and uncertainties is to accept all Referrals ? even if that requires changing how they interpret their TOS, and taking down previously permitted expression. That means accommodating even the most aggressive Referrals from national authorities, letting their requests shape online information access throughout the EU and around the world.

Yes, the lowest common denominator from whatever “competent authority” wins. As Keller points out, this “Rule of TOS” rather than “Rule of Law” is going to lead to some bad outcomes, but they’re often ones that regulators can then turnaround and blame on the platforms rather than their own bad regulation that forces the platforms’ hand. It is going to be an utter mess.

Filed Under: copyright directive, eu, europe, terrorist content regulation