EU Terrorist Content Regulation adopted without a final vote — what to expect and what it means
The Regulation on addressing the dissemination of terrorist content online (TERREG) has been adopted without a final vote thanks to a peculiarity in European Parliament procedure. The dangers of content filtering, over-policing of content by state and private actors, and the cross-border prerogatives for governments will now become law without a final stamp from the elected representatives of the European citizens.
What happened (and what didn’t)
A Plenary debate had been scheduled to discuss the draft legislation one last time. However, the voting list released for the Terrorist Content Regulation specified it would be approved without a final vote. A text that goes into so-called “second reading” — as the file in question was — is considered “approved without vote”, unless one of the political groups expressly requests a plenary vote. None of them did, so TERREG is considered as passed and will enter into force 12 months after publication in the Official Journal of the EU.
On April 20th, LIBE adopted what is now the final text with 52 Members of the European Parliament (MEPs) in favor of the draft legislation, including the Dutch MEP Sophia in ‘t Veld, a powerhouse in privacy and fundamental rights debates in the European Parliament. The 14 votes rejecting it came from members of the Greens with the TERREG Shadow Rapporteur Patrick Breyer at the helm, and the Left.
Most likely, the votes of the Plenary, comprised of 705 MEPs, would have been strongly in favor of the bill as well. The road to get to a compromise text was hard. The troublesome proposals by the German Presidency were coupled with a lack of understanding among policymakers about the incentive structures that would drive internet platforms to deploy content filtering systems. It seems that MEPs were skeptical that a better compromise could be found and therefore they thought that this final version should be adopted as a law.
The good and bad points of the Terrorist Content Regulation
It is fair to say that the agreement achieved in December 2020 in the trilogues is better than the original proposal published by the European Commission at the beginning of the process in 2018. Still that does not make the final version as proportionate and as protective of freedom of expression as we would like it to be.
The final text is still too vague and broad, and infringes on fundamental rights to express political views and to access information. The Regulation includes exceptions for journalists, artistic and educational purposes, but these are up to interpretation by national governments and depend on national legislation determining what journalism or artistic expression is, meaning that the Regulation could be inconsistently enforced across the EU. The legislation also mandates platforms to respond to a removal order within one hour. The authorities are prohibited from imposing upload filters — but the hosting service providers can still use them voluntarily. Faced with short deadlines and fines for non-compliance, many platforms would rather avoid receiving orders altogether, and the temptation to comply with the law by deploying content filters that don’t account for context and remove false positives may just be too big to resist for some of them.
Will it affect the Digital Services Act? (DSA)
TERREG, just like the Copyright Directive for the Digital Single Market which was adopted in 2019, will regulate a specific type of information. As such, it will not be much affected by the future provisions of the DSA that addresses content moderation on a more general level.
Having said that, we must also understand that there are MEPs and Member States that would like to see the DSA having a stronger grip on platforms than the European Commission has proposed. So TERREG may, unfortunately, provide an inspiration for all sorts of amendments and compromise proposals surfacing in the work of the Committees in the EP as well during the debates of the Council of the EU.
Yet the position of the Wikimedia movement in the context of both TERREG and the DSA remains clear: the law should promote people’s ability to collaborate online and make joint decisions about information quality. MEPs should learn from the TERREG debacle and work towards rules that protect online communities’ ability to engage in content moderation and self-governance when they have demonstrated that they can do this effectively.
Anna Mazgal, EU Policy Advisor, Free Knowledge Advocacy Group EU