On 28 February next, the European Commission is expected to present a recommendation containing several measures to, “efficiently tackle illegal online content”. A draft text was made public by the European Digital Rights organisation on Tuesday, 13 February. This reveals that the Commission intends to crank up another gear, particularly with regard to content of a terrorist nature but, nonetheless, without taking the step to introducing binding legislation.
In its recommendation, the Commission also recognises the good progress made by, “the different voluntary arrangements" and is more inclined to set itself the objective of continuing to guide the activities of member states through general principles.
The recommendation recognises the particularities of the fight against different kinds of illegal online content and emphasises that specific responses maybe required, for example, in the copyright and audiovisual domain.
It provides very general recommendations for all kinds of illegal online content and particularly highlights the importance of reporting mechanisms that are easy to find and use.
In terms of transparency, the companies that host this content are encouraged to publish clear and detailed explanations on their policies, including the content they consider illegal, as well as the quantity and type of content removed.
In an effort to avoid removing content that is not illegal, "Efficient and appropriate" guarantees should be put into place to guarantee that digital platforms are acting with due diligence when they decide on operating a possible removal, explains the document, but without providing any more clarification in this regard.
The Commission is also calling on the member states and platforms to designate contact points for questions relating to the removal of online content and the introduction of fast-track procedures for processing notifications presented by the competent authorities.
Terrorist propaganda recognised as “particularly" illegal content
In addition to these general recommendations, the document includes a chapter exclusively focusing on online content with a terrorist nature. In it, the Commission explains the “particularity” of this content and the urgent need for a swift response in this area, which involves, amongst other things, increased use of the technologies developed by the platforms for identifying and removing this kind of content, as well as preventing its diffusion or downloading.
It is particularly recommending a one hour deadline for removing content deemed illegal - this is a much shorter deadline than the one set out, for example, for online hate speech in the Code of Conduct, which compels the major digital companies to tackle descriptions deemed valid in less than 24 hours. It also considers that the platforms should clearly indicate in their conditions of service that they will not keep any content of a terrorist nature.
The Commission also explains that the present recommendations could be "completed" by the addition of other recommendations in the future.
The draft text can be examined at the following address: http://bit.ly/2F1VbAr.
Voluntary or binding approach?
Although the European Commission decided that legislation in this domain was not the most coherent tool due in particular, to the time factor, some member states have decided to legislate.
This is indeed the case with Germany, where a new law entered into force on 1 January 2018 that demands that major social media platforms rapidly withdraw illegal content as defined by the penal code. Failure to do so could mean these companies facing fines of up to €50 million.
On Wednesday 14 February, the Human Rights Watch organisation warned against this law, which it considers defective and is therefore calling for its abrogation. The organisation is critical of it because it is imposing a very difficult task on the companies hosting content if the ideas of the users breached the law and creates conditions that encourage the subsequent removal of ideas that are probably legal.
The organisation also considers that this law establishes a dangerous precedent for governments in other countries that are seeking to restrict the freedom of expression on the Internet. At least three countries, Russia, Singapore and the Philippines, have explicitly cited the German law as a positive example given that they are also looking at the possibility of introducing legislation in this area, explains Human Rights Watch.
Wenzel Michalski, the director of Human Rights Watch in Germany, warned that, “Compelling countries to act as government censors is problematic in a democratic state and very damaging in countries where the rule of law is already uncertain". (Original version in French by Marion Fontana)