On 11 December 2018, three United Nations Special Rapporteurs published a joint Report on the European Union’s proposal for a Regulation to prevent the dissemination of terrorist content online. The Report, issued by Special Rapporteur on freedom of expression David Kaye, Special Rapporteur on right to privacy Joseph Cannataci, and Special Rapporteur on protection of human rights while countering terrorism Fionnuala Ní Aoláin, raises a number of serious concerns regarding the definitions used in the draft legislation and the competences and obligations it gives to national authorities.

The call of the Special Rapporteurs for a legislative approach that respects human rights fits flawlessly with an alarming trend report that another well-respected organ of international human rights protection has issued recently: In a compelling and chilling analysis, the Council of Europe Commissioner for Human Rights, Dunja Mijatović, outlined on 4 December 2018 how all over Europe, the misuse of counter-terrorism as an excuse for censorship and unjust treatment of opponents is on the rise.

These observations come at a critical point in time for the European Union. With the European Commission pushing hard to adopt the Terrorist Content Regulation before the European elections in May 2019, the stakes for freedom of expression on the internet are high in the wrap-up phase of the current EU legislative term. The congruent demands of international expert organisations highlight that substantial reform of the proposal is imperative to avoid sliding further into an already worrying trend of undermining the rule of law in the fight against terrorism.

The need for clear definitions

As Commissioner Mijatović argues, governments frequently design counter-terrorism legislation that can lead to a dangerous curb of the freedom of expression by relying on hasty implementations and insufficiently clear definitions. Citing examples from Russia, the United Kingdom, France, Turkey and Spain, the analysis compellingly outlines the inherent dangers of “catch-all” labels such as “glorification of terrorism” and the use of counter-terrorism legislation to suppress political opponents, especially (but not only) in countries where the rule of law is endangered or abolished. The assessment comes shortly after the publication of a letter that the Commissioner for Human Rights addressed to the Spanish parliament in November 2018, calling for a review of the broad and imprecise wording of the Spanish “law on citizen’s safety” (also known as the “Gag law”) that led to a large number of fines (13 033 in 2017 alone) for people taking part in democratic protests.

Similar problems with definitions are highlighted by the UN Special Rapporteurs: As they find, the definition of “terrorist content” provided by the new proposed Regulation to prevent the dissemination of terrorist content online (TERREG) omits the principle of legality by setting imprecise thresholds for what could constitute a “glorification” of terrorism (p.3). They also harshly condemn that the questions of intent and true terrorist nature are entirely ignored in the definition of terrorist content, which they fear will lead to it broadly capturing all kinds of legitimate forms of expression, including the work of journalists and human rights organisations (pp.3, 5).

Thus, both the UN experts and the Council of Europe Commissioner outline perfectly that the scope of counter-terrorism legislation needs to be clearly and narrowly delimited: If statements that offend or shock a population are no longer protected by the freedom of expression, open and democratic societies are not safeguarded, but endangered.

The call for wary enforcement and the pitfalls of privatisation

The UN Special Rapporteurs also make a number of remarks on the measures of removal orders and referral competences that the Terrorist Content Regulation would give to national authorities.

First, they signal an “exceptional concern” (p.6) about the extremely short time frame under which content would need to be deleted by a hosting service provider after receiving a removal order, essentially because it does not allow for any meaningful evaluation of the request.

Second, the lack of any requirement for the institutional independence of the authorities is another major point of criticism. It opens the possibility for non-judicial entities with no experience in safeguarding human rights to wield this powerful instrument (p.6).

Third, an even bigger concern arises in the context of the measure of referrals, under which national authorities can forward content (that might or might not be illegal) to the internet companies for their voluntary consideration under the terms of service – in turn creating an “escape route” for the authorities to bypass national and international human rights law.

Finally, the Rapporteurs warn of the general monitoring obligation that is, in their opinion, created through the so-called “proactive measures”. They state that automated means such as algorithmic filters deciding on the blocking of content would create a situation in which due process is undermined before the user material is even uploaded. This would fundamentally challenge the principle that it should be states, not private actors, who carry the burden of deciding on restrictions to the freedom of expression (p.9).

Commissioner Mijatović, in line with the UN Special Rapporteurs’ concerns, believes that journalists and citizens must be able to foresee the consequences of their actions in the context of counter-terrorism laws. However, the privatisation of law enforcement based on the terms of service of the internet companies, automated upload filters and (in the context of referrals) the unwillingness of law enforcement to conduct an accountable balancing of fundamental rights will most certainly not guarantee a clear foresight for citizens and media regarding how their content is going to be treated.

The substantive criticism of the current counter-terrorism trends in Europe, issued by two well respected international institutions, underlines that there is an urgent need to ensure that the path the EU and European societies are taking to protect their security does not lead to civil liberties being undermined and abandoned. In the context of the Terrorist Content Regulation, the European Parliament and the Council of the European Union are well advised to not let the concerns of these two centre-pillars of global human rights protection die away unheard.

Terrorist Content Regulation: Civil rights groups raise major concerns (05.12.2018)

https://edri.org/terrorist-content-regulation-civil-rights-groups-raise-major-concerns/

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

https://edri.org/terrorist-content-regulation-prior-authorisation-for-all-uploads/

EU’s flawed argument’s on terrorist content give big tech more power (24.10.2018)

https://edri.org/eus-flawed-arguments-on-terrorist-content-give-big-tech-more-power/

Press Release: EU Terrorism Regulation – an EU election tactic (12.09.2018)

https://edri.org/press-release-eu-terrorism-regulation-an-eu-election-tactic/

Commission’s position on tackling illegal content online is contradictory and dangerous for free speech (28.09.2017)

https://edri.org/commissions-position-tackling-illegal-content-online-contradictory-dangerous-free-speech/

(Contribution by Yannic Blaschke, EDRi intern)