Today, on 31 May, European Digital Rights (EDRi) and Access Now delivered a joint statement on the EU Commission’s “EU Internet Forum”, announcing our decision not to take part in future discussions and confirming that we do not have confidence in the ill considered “code of conduct” that was agreed.

Launched at the end of 2015, the “EU Internet Forum” was meant to counter vaguely defined “terrorist activity and hate speech online”. The discussions were convened by the European Commission and brought together almost exclusively US-based internet companies and representatives of EU Member States. While no civil society organisations were invited to attend the discussions on terrorism, several civil society representatives were allowed to take part in some of the discussions on online hate speech. However, civil society was systematically excluded from the negotiations that led to the voluntary “code of conduct” for IT companies – an official document that was presented today, despite the lack of transparency and public input into its content.

Faced with this lamentable outcome, and with no possibility to provide meaningful input to this process, the Commission has left us with no other choice but to withdraw from the discussion,

said Estelle Massé, EU Policy Analyst at Access Now.

It is ironic that the Commission is threatening to take Member States to court for failing to implement EU law on racism and xenophobia while it is persuading companies like Google and Facebook to sweep offences under the carpet,

added Joe McNamee, Executive Director at European Digital Rights.

What is in today’s code of conduct?

an explicit statement that companies will “take the lead” in policing controversial speech online, which means that law enforcement authorities will not be taking the lead;

an undertaking that IT companies will ban content that should already be legally banned;

an undertaking to review notifications against company terms of service first and then, “if necessary” to review them against the law. In practice, this means that the legal procedures for testing the legality of content against the law will never be used as the code of conduct asks for illegal content to be banned by terms of service.

In short, the “code of conduct” downgrades the law to a second-class status, behind the “leading role” of private companies that are being asked to arbitrarily implement their terms of service. This process, established outside an accountable democratic framework, exploits unclear liability rules for companies. It also creates serious risks for freedom of expression as legal but controversial content may well be deleted as a result of this voluntary and unaccountable take down mechanism.

This means that this “agreement” between only a handful of companies and the European Commission is likely in breach of the EU Charter of Fundamental Rights, under which restrictions on fundamental rights should be provided for by law. It will, in practical terms, overturn case law of the European Court of Human Rights on the defense of legal speech.

Countering hate speech online is an important issue that requires open and transparent discussions to ensure compliance with human rights obligations. This issue remains a priority for our organisations and we will continue working for the development of transparent, democratic frameworks:

In the European Union, EDRi and its members are working tirelessly to ensure that the proposed Directive on Combating Terrorism is in line with the EU Charter of Fundamental Rights.

Globally, Access Now is engaging civil society, governments, international experts and companies on policy recommendations on a digital rights anchored approach towards countering violent extremism online. For its part, EDRi has recently provided input to the UN High Commissioner on the respect of human rights while preventing and countering violent extremism.

Background information

EU Internet Forum against terrorist content and hate speech online: Document pool

https://edri.org/eu-internet-forum-document-pool/

EU Commission under investigation for EU Internet Forum documents (30.05.2016)

https://edri.org/commission-under-investigation-eu-internet-forum/