If You're Worried About Bad EU Internet Regulation, Just Wait Until You See The New Terrorist Regulation

from the bye-bye-free-speech-online dept

This seems to be the year for awful internet regulation by the EU. At least there were some redeeming qualities in the GDPR, but they were few and far between, and much of the GDPR is terrible and is creating real problems for free speech online, while simultaneously, undermining privacy and giving repressive governments a new tool to go after critics. Oh, and in the process, it has only made Google that much more dominant in Europe, harming competition.

And, then, of course, there’s the still ongoing debate about the EU Copyright Directive, which will also be hellish on free speech. The entire point of Article 13 in that Directive is to wipe away the intermediary liability protections that enable websites to host your content. Without such protections, it is not difficult to see how it will lead to a widespread stifling of ideas, not to mention many smaller platforms for hosting content exiting the market entirely.

But here’s the thing: both of those EU regulations are absolutely nothing compared to the upcoming EU Terrorist Regulation. We mentioned this a bit back in August, with the EU Commission pushing for the rule that all terrorist content must be taken down in an hour or face massive fines and possible criminal liability. Earlier this year, Joan Barata at Stanford wrote a compelling paper detailing just how extreme parts of the proposed regulation will go.

Among the many questionable bits of the Terrorist Regulation are that it will apply no matter how small a platform is and even if they’re not in the EU, so long as the EU claims they have a “significant number” of EU users. Also, if a platform isn’t even based in the EU, part of the proposal would require the companies to hire a “representative” in the EU to respond to these takedown demands. If the government orders a platform to take down “terrorist” content, a platform has to take it down within an hour and then set up “proactive measures” to stop the same content from ever being uploaded (i.e., mandatory filters).

Oh, and of course, this mechanism for rapid and permanent censorship based solely on the government’s say so, has… a ridiculously vague “definition” of what counts as “terrorist content.”

‘terrorist content’ means one or more of the following information:

(a) inciting or advocating, including by glorifying, the commission of terrorist offences, thereby causing a danger that such acts be committed;
(b) encouraging the contribution to terrorist offences;
(c) promoting the activities of a terrorist group, in particular by encouraging the participation in or support to a terrorist group within the meaning of Article 2(3) of Directive (EU) 2017/541;
(d) instructing on methods or techniques for the purpose of committing terrorist offences.

There are all sorts of problems with this, and as the IP-Watch site notes, this appears to be a recipe for private censorship on the internet.

Recently, a large group of public interest groups sent a letter to EU regulators laying out in great detail all of the problems of the regulation. I’m going to quote a huge chunk of the letter, because it’s so thorough:

Several aspects of the proposed Regulation would significantly endanger freedom of expression and information in Europe:

  • Vague and broad definitions: The Regulation uses vague and broad definitions to describe ?terrorist content? which are not in line with the Directive on Combating Terrorism. This increases the risk of arbitrary removal of online content shared or published by human rights defenders, civil society organisations, journalists or individuals based on, among others, their perceived political affiliation, activism, religious practice or national origin. In addition, judges and prosecutors in Member States will be left to define the substance and boundaries of the scope of the Regulation. This would lead to uncertainty for users, hosting service providers, and law enforcement, and the Regulation would fail to meet its objectives.
  • ?Proactive measures?: The Regulation imposes ?duties of care? and a requirement to take ?proactive measures? on hosting service providers to prevent the re-upload of content. These requirements for ?proactive measures? can only be met using automated means, which have the potential to threaten the right to free expression as they would lack safeguards to prevent abuse or provide redress where content is removed in error. The Regulation lacks the proper transparency, accountability and redress mechanisms to mitigate this threat. The obligation applies to all hosting services providers, regardless of their size, reach, purpose, or revenue models, and does not allow flexibility for collaborative platforms.
  • Instant removals: The Regulation empowers undefined ?competent authorities? to order the removal of particular pieces of content within one hour, with no authorisation or oversight by courts. Removal requests must be honoured within this short time period regardless of any legitimate objections platforms or their users may have to removal of the content specified, and the damage to free expression and access to information may already be irreversible by the time any future appeal process is complete.
  • Terms of service over rule of law: The Regulation allows these same competent authorities to notify hosting service providers of potential terrorist content that companies must check against their terms of service and hence not against the law. This will likely lead to the removal of legal content as company terms of service often restrict expression that may be distasteful or unpopular, but not unlawful. It will also undermine law enforcement agencies for whom terrorist posts can be useful sources in investigations.

The European Commission has not presented sufficient evidence to support the necessity of the proposed measures. The Impact Assessment accompanying the European Commission?s proposal states that only 6% of respondents to a recent public consultation have encountered terrorist content online. In Austria, which publishes data on unlawful content reports to its national hotline, approximately 75% of content reported as unlawful were in fact legal. It is thus likely that the actual number of respondents who have encountered terrorist content is much lower than the reported 6%. In fact, 75% percent of the respondents to the public consultation considered the internet to be safe.

And that’s not all. The UN’s Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (yup, that’s the title), David Kaye, has also sent a letter warning of the problems of such a regulation on free speech. It’s 14 pages long, but the key point:

…we wish to express our views regarding the overly broad definition of terrorist content in the Proposal that may encompass legitimate expression protected under international human rights law. We note with serious concern what we believe to be insufficient consideration given to human rights protections in the context of to the proposed rules governing content moderation policies. We recall in this respect that the mechanisms set up in Articles 4-6 may lead to infringements to the right to access to information, freedom of opinion, expression, and association, and impact interlinked political and public interest processes. We are further troubled by the lack of attention to human rights responsibilities incumbent on business enterprises in line with the United Nations Guiding Principles on Business and Human Rights.

In other words, yet another European regulation targeting internet companies (many of whom are not based in Europe) that will ultimately lead to (1) greater censorship (2) more consolidation by internet giants, as smaller platforms won’t be able to compete, and (3) massive “unintended” consequences for the internet as a whole.

Maybe it’s time we just kick the EU off the internet. Let them build their own.

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Comments on “If You're Worried About Bad EU Internet Regulation, Just Wait Until You See The New Terrorist Regulation”

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Anonymous Coward says:

Re: Re:

They could just build the Great Firewall of Europe as China has done and be done with the whole problem. But that’s not really what they want. They don’t want to have to build anything. They want others to do all the work and curating of internet content so that it looks the way they want with no effort other than passing ridiculous laws.

Classic Europe, really.

ShadowNinja (profile) says:

Re: Re:

Or maybe we can let them pass this horrible bill, and wait for someone in the EU to inevitably report all of Donald Trump’s tweets as ‘terrorist content’ to automatically take it down to show how bad the system is, and watch Trump go berserk on the EU and create an international incident.

Seriously, I 100% expect this to happen if the EU passes this as is.

Mason Wheeler (profile) says:

Re: Re:

Any lawyers in the house? I’m curious as to how valid it would be to put something like the following in your site, that users have to read and acknowledge as part of the sign-up process?

Limited Jurisdiction
[Site name here] is a US company that has no international assets. It does not run any servers outside of the United States, nor does it accept payment in any currency other than US Dollars. You acknowledge, in light of this, that only the United States has legal jurisdiction over [site name here], and agree to waive any applicable rights that may be conveyed by foreign laws or regulations which are not recognized by US law.

That One Guy (profile) says:

Re: Re:

Should this disaster pass I suspect that will be added to the boilerplate TOS for many sites. ‘This site is not intended to be viewed or accessed by anyone in the EU. By using this site/platform/service you are stating that you are not living in any country that comprises the EU.’

Then, if a politician tries to make a power-grab over a particular site said site can simply point out that anyone in the EU using their site is doing so in express violation of the TOS, and therefore if they have a problem they can take it up with those people, as the site made it clear that they want nothing to do with anyone within the EU and is not under it’s jurisdiction.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

And your assuming that the US Government, current or otherwise, want’s the EU editing anything over here. No, they want the control, not someone else, but with the 1st Amendment they have some problems, as the courts have not totally gone under the control of the Executive.

The bigger question is one of sovereignty, as Mason points out. How the hell does the EU expect to enforce their wet dream ejaculations anywhere other than in the EU? Sure there could be some economic sanctions, maybe something else. But actual enforcement?

OK, we have some examples of the US doing similar things (Kim Dotcom, whether you like him or not, US jurisdiction?) and others. But they haven’t won in the case of Dotcom, and it’s been what, 7 years?

This whole extraterritorial enforcement of local laws has got to stop.

Anonymous Coward says:

the whole idea of these and similar laws, whether in the EU, USA, China or Mars is to remove as much as possible the availability of the use of the Internet by ordinary people! at the moment, it is easy for content to be discovered about anyone and then disclosed to everyone, everywhere! the aim is to stop this from happeneing because the people who are ‘up to no good’ are not those looked on by ordinary people as criminals, rather, it’s those who are looked on as being those in high positions, positions of power, the rich and the famous, who, up til now, have been able to do whatever the hell they liked and no one was any the wiser. with the Internet, their escapades and dirty exploits are reported around the globe in minutes! that was the idea of the ridiculous ‘Right To be Forgotten’ law! the individual who brought that case must have been well rewarded for doing that but i doubt it was for his benefit (other than financial!) but started the ball rolling for all the upper class fuckers to now go down this route. you can bet your ass, nothing is ever done to protect what ordinary people are doing!

Anonymous Coward says:

Will all small us websites simply choose to block
eu users .Many american news sites are not blocked in the eu,
See links on http://www.drudge.com
why should American websites reduces users rights
or block free speech just to help some stupid
eu regulators who are either stupid or do not care
about free speech.
So what happens if china makes a law that bans
references or content that refers to human rights problems in china
or muslims being sent to so called reeducation
camps .
Will the eu ask eu websites to comply with
chinese law .
IF this trend continues, the internet will
be split into 3, chinese websites ,
eu websites and then other countrys who value
free speech over blocking content that might
be offensive to some one.

Anonymous Coward says:

hidden hands, ulterior motives, and the thin edge of the wedge

The one hour "terrorist material" takedown requirement seems impossibly draconian,seemingly requiring not only 24/7 site staffing but also an infinitely high number of employees tasked with this high priority emergency in case they get bombed with many requests at one time.

That is unless you realize that this is not about terrorism at all. It was in all probality put there by by the MPA, Brein or other copyright enforcement lobbying groups as a sort of trial run for the ultimate target: copyright takedowns. One of the things they have for years been demanding on hosting sites has been near-instant takedowns, accomplished through setting up either automated takedowns or giving monitoring parties direct server access. This has already been the case with many "one click" file hosting sites as well as usenet providers, and as a result, infringing files (in reality, anything with a title that matches certain key words) are detected and deleted within an hour or two of being posted. (This wave happened way back in 2012 for major US based usenet providers such as Giganews, Astraweb, and Highwinds, but Dutch Usenet providers refused, and instead continued their practice of taking down accused copyright infringing files a day or two after being posted)

But then this ‘one-hour’ takedown requirement only affects terrorist content, right? Yes, that’s how they get it in through the door, and then after all providers have working mechanisms in place for instant takedowns of terrorist content, copyrighted content will be quitly slipstreamed into the ‘one hour takedown’ law.

Before anyone jumps to the conclusion that this is all just an insane conspiracy theory, let’s not forget that the copyright protection racket has been railing on about the online epidemic of child porngraphy and terrorist material for many years, in their drive to force tighter control of online content. After all, who is going to object to the admirable goals of protecting children or fighting terrorism?

AC Currant says:

I'm NOT worried! -- But why are you?

On the one hand, IF what you worry about comes true, it’ll put the US in better position (even Google, if you’re right, though they’re now trying to position this as bad for US corps). — On other hand, if my hopes were to come true, it’d stymy globalist corporations: good for everyone!

You keep running these pieces, but I still have to wonder where’s the downside? Some vague dimunition for your notion of "free speech"? (Your notions explicitly don’t include mine and other conservatives.) Europeans don’t have free speech now, just are let pretend that they do, in areas that don’t matter to politics. I can find no downside.

That One Guy (profile) says:

'We in the EU make laws for the world, like it or not'

Among the many questionable bits of the Terrorist Regulation are that it will apply no matter how small a platform is and even if they’re not in the EU, so long as the EU claims they have a "significant number" of EU users. Also, if a platform isn’t even based in the EU, part of the proposal would require the companies to hire a "representative" in the EU to respond to these takedown demands.

Or put another way, ‘If you’re not in our jurisdiction and in a position where we can punish you, you are required to put yourself under our jurisdiction so that we can punish you.’

I know france has been trying the ‘our laws apply globally’ trick the last few years with google, but even they haven’t gone this far yet, demanding that a company not even operating in the country hire someone in it so that they’ll be within it’s jurisdiction.

Anonymous Coward says:

One thing about VPNs in bypassing any geoblocking that might happen becuase of this is that it is now easier to roll your own VPN.

This is also why the the copyright lobby’s suggestion of trying SOPA again will not work.

Someone who can afford to buy second home abroad could do that, and then set up their own VPN at their second home abroad and connect to that, avoid any site blocking.

This is why bans on commercial VPN services will never work. Someone could make their own private VPN elsewhere and still be able to access blocked content.

In short, SOPA, if it were law today, would affect the rich, who can afford to buy a second home abroad, then use the internet connection there bypass any SOPA site blocking.

Adrian Lopez says:

Long-arm legislation

“Maybe it’s time we just kick the EU off the internet. Let them build their own.”

What we really need is to insulate American companies against laws like these. I’d like to see a rule saying “it it’s not the law in the US then it’s not enforceable by US courts.” Like the SPEECH Act, but for all kinds of laws.

Seegras (profile) says:

Dear America

Take a look where these complaints are coming from:

48.7% from the US. And what the most likely area is the complained-over content _really_ is: Adult Pornography.

What I can see here is that American puritan pukes are constantly complaining about Austrian porn sites.

This is a global problem. And these holier-than-thou postings are annoying.

lafiottesuisse says:

the eu scam

the eu is a totlaitarian regime that must be destroyed by Europeans with the help of countries ootside.

The eu is not Europe, the eu destroys Europe.

The eu is the globalist project to exterminate European people (that includes Americains) and erase our cultures.

the eu must be destroyed if we want to survive

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