Upside-down: should all content be deemed terrorist until determined otherwise?

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Image by Alejandro Núnez Frometa, under CC-BY-SA 4.0

The German Presidency of the EU is accelerating the trilogue negotiations around the terrorist content regulation (TERREG). Yet, faster doesn’t always mean better, as the German compromise text proves. The most disturbing ideas in the compromise pose an attack on freedom and pluralism of the media and of arts and sciences. Is the new text a lapse of judgement or a glimpse into how a modern EU government envisions its powers over democratic discourse and the role of tech in it?

Media and arts with the seal of approval of governments?

One of the issues with the proposal for a regulation to prevent the dissemination of terrorist content online was, from the beginning, a blurry definition of what constitutes “terrorist content”. The German Presidency proposes to exclude materials disseminated for educational, journalistic, artistic or research purposes from that definition under the condition that “the dissemination of the information is protected as legitimate exercise of freedom of expression and information, the freedom of the arts and sciences as well as the freedom and pluralism of the media”.

This raises questions about what may or may not constitute “legitimate journalism” or “legitimate artistic expression.” And, importantly, about who gets to decide what is legitimate reporting or legitimate educational purpose. As the proposal stipulates so far, it will not be the court deciding, but competent authorities in each Member State and also the internet platforms hosting the content.

The German government is very worried that “a blank exemption might lead to postings of illegal content under the pretext of a protectworthy [sic!] purpose.” In other words, the text suggests that the status of expression is not defined, until someone decides whether a given piece of news or a poem passes as free expression or not. However, this would reverse the logic of the human rights framework that protects the freedom to receive and impart information, which says that expression is protected and should only be limited subsequently, by a court and upon legitimate request, not proactively. May that established logic free expression carry some risk for society? Yes. But ever since the first newspaper was printed, we have learned to live with the risk that expression may go beyond what we accept as a society, and to deal with transgressions after and if they actually happen. Legislation and regulation that goes against this principle results in censorship.

It cannot be stressed enough: according to existing EU laws, information is legal until decided otherwise by a judge. Unfortunately, this proposal presents a shift in how freedom to access and impart information is understood. If adopted, it would create a mechanism of proactive oversight over free expression, designed by governments and executed by private actors: social media and other platforms that host content generated by their users, Wikipedia included.

Cutting journalism into a legitimate shape?

Through its proposed new article 2(5a), an accompanying recital, and recital 9a coupled with explanations provided by the authors, the German Presidency’s compromise suggests that the very essence of what constitutes journalism should depend on how a given government or a platform understands it. In practice, the authorities and platforms would perform a “3-step” test to determine the legality of content.

  1. A video, an article, or an image would first be qualified either as “promoting terrorism” or not.
  2. Should it be the former, then the legitimacy of this particular publication would be assessed. And this concept is impossible to define precisely in a law governing information, so that already paves the way to discretionary decisions.
  3. Finally, the proposal outlines that if a content creator holds editorial responsibility — such as a media outlet does — it is not enough to determine that a given piece of content is “journalistic”. It also needs to be weighed against the journalistic standards established by regulation, and that regulation is usually on a Member-State level.

The indication of legitimacy mentioned in the German Presidency proposal is vague enough to require more detailing by the Member States. This paves the way for issuing additional legislation or guidelines that enable a practical exercise of the legitimacy “3-step” test in a national context.

And it opens the door for abuse by governments with autocratic tendencies. It would be easy for them to decide to tweak national legislation to provide that exception only to media outlets that support the government. In the EU, there are enough examples of over-application of national terrorist laws not to dismiss this as an improbable scenario.

The German Presidency doesn’t even make it a secret that a wide array of content is the target of the compromise proposal. According to its rationale, “the definition should capture material that is actually used by terrorist groups for recruitment and radicalisation purposes.” We already have laws that address expression that is deemed illegal, ranging from criminalising calls to violence against certain groups or individuals, including law enforcement legislation and the Directive on combatting terrorism. This type of content can and should be removed without a new law casting a net that is way too wide and includes few safeguards for media reporting on underprivileged communities.

Making matters worse, we cannot count on the private sector to hold up free expression either. Twitch has banned displaying or linking to terrorist or extremist propaganda even for the purposes of denouncing such content, as it is easier to just get rid of the problem than let people discuss it or conduct research. Facebook’s moderation practices around terrorist content lead to removals of journalists’ accounts. If the German Presidency proposal becomes the law, it will force platforms to police content to reduce the risk of being fined. It will only exacerbate content moderation problems we already see on private platforms.

The future of ill-designed regulation will be decided by courts

This proposal has been presented as a part of a Digital Single Market package, a framework that aims at smooth functioning of online services across the EU Member States. Its objective is supposedly to give platforms unified rules to deal with terrorist content. What the German Presidency proposes deviates from the purpose of harmonising the operations of platforms across the EU Member States. It promotes disproportionate and unnecessary legislation and brings about new ideas of law enforcement oversight over freedom of expression and ignores existing laws guaranteeing this freedom.

In Europe, the national and EU-level jurisprudence on freedom of expression and freedom of media provide grounds to believe that such laws formulated will not stand in court and will be overturned, which could happen at the Court of Justice of the EU. Yet, if this proposal for conditional exceptions for journalistic, artistic and scientific content is adopted, it will only bring chaos and abuse of its provisions to the detriment of public debate; until it is considered unfit for the purpose. We call on EU governments and the Members of the European Parliament negotiating in the trilogues to reject it.

Anna Mazgal, EU Policy Advisor, Wikimedia Deutschland

policy.wikimedia.org - Stories by Wikimedia's Public Policy Team: Stephen LaPorte, Allison Davenport, Sherwin Siy, and Jan Gerlach.

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