EU's Never Ending Quest To Rip The Internet And Free Expression To Shreds Continues With The Terrorist Content Regulation

from the it's-not-good-folks dept

Many of us are still getting over the insanity of the EU’s Copyright Directive decision, and already we need to worry about the next awful EU regulation on the horizon: the EU’s Terrorist Content Regulation which is significantly worse than even Article 13/17 of the Copyright Directive, and will create a massive stifling effect on free speech on the internet.

Over at Stanford, Daphne Keller has put together a depressing, but thorough, look at how the Terrorist Content Regulation will allow the most censorial government officials to silence speech across the EU, and possibly around the world.

We’ve discussed some of the details in the past (and on a podcast), but one of the key parts of the law is that it will require any website to take down content deemed to be terrorist content within one hour, based on demands from “competent authorities” within countries (don’t even bother trying to figure out who is a “competent authority,” it’ll drive you crazy.)

Another, perhaps equally (or more) concerning, is that the regulation seeks to promote platform terms of service over the rule of law. As I’m sure you know already, platform terms of service do not need to match up with local laws, and platforms can be much more free to block or ban any kind of content as a violation of a particular term. The EU’s plan here elevates the power of the terms of service, by allowing “competent authorities” (those guys again!) to tell platforms that certain content is in violation of their terms, requiring companies to review the content and potentially remove it or face liability. And you know what that will lead to: widespread censorship.

Keller’s piece focuses on this “TOS over rule of law” aspect of the Terrorist Content Regulation to highlight how it will effectively allow the most censorial in a position to spread their censorship across the EU. Effectively, because if platforms disagree with a “referral” concerning their Terms of Service, they face incredibly onerous conditions in response:

The Regulation provides two tools for national authorities. The first, and easiest for all concerned, is a Referral, which requires the platform to expeditiously review content under its Terms of Service. The second is a binding Order. Orders require the platform to take content down, based on authorities? determination that it violates the law. Referrals are the easiest choice for law enforcement, because they involve little or no legal analysis and the paperwork is simpler. They?re easier for platforms as well ? and complying helps maintain good relationships with authorities.

Beyond these basic and to some extent pre-existing incentives, the Regulation adds major new ones. A platform that rejects a Referral and receives an Order is effectively choosing to accept major and unpredictable new obligations. For smaller platforms that have not already invested in content filters, getting an Order (or in some drafts several Orders) triggers the obligation to build them. That?s costly for any company, and may be financially insupportable for small ones. Companies that receive Orders also assume a new and poorly-defined relationship with authorities. They must submit annual reports describing their filtering efforts, and make engineering or product design changes if authorities aren?t satisfied. Since no one knows for sure who these new de facto regulators will be or how well they will understand available technologies, it?s hard to predict what they?ll ask for.

The best way for platforms to avoid these costs and uncertainties is to accept all Referrals ? even if that requires changing how they interpret their TOS, and taking down previously permitted expression. That means accommodating even the most aggressive Referrals from national authorities, letting their requests shape online information access throughout the EU and around the world.

Yes, the lowest common denominator from whatever “competent authority” wins. As Keller points out, this “Rule of TOS” rather than “Rule of Law” is going to lead to some bad outcomes, but they’re often ones that regulators can then turnaround and blame on the platforms rather than their own bad regulation that forces the platforms’ hand. It is going to be an utter mess.

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Comments on “EU's Never Ending Quest To Rip The Internet And Free Expression To Shreds Continues With The Terrorist Content Regulation”

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34 Comments
kyle clements (profile) says:

"it will require any website to take down content deemed to be terrorist content within one hour, based on demands from "competent authorities" within countries"

One hour?

What happens if the person running the website is asleep or at work when this demand arrives?

It’s almost like they want to make it impossible for individuals, and only allow big established companies to run websites.

I'm_ not_giving_my_name_to_a_machine (profile) says:

Re: Re: Re:

Ding ding ding… we have a winner. A lot of these actions as of late seem very much focused on keeping old (big) media in control and thus the EU governments as well. The nonsense being pushed goes well beyond simple ignorance based heavy handed rule/law making. Instead seeming much more like purposeful attempts to monkey wrench the very nature of the open, decentralized and independent internet.

Anonmylous says:

Silver lining?

This could simply result in TOS statements worldwide getting way way shorter:

"You agree by using the service your words belong to you and you alone. You agree to bear all responsibility for what you say and to hold the platform free of liability in all respects. You agree we have the right to remove your content for any reason at all, based on nothing more than Corporate whim. You further agree any images you upload are your liability, and grant us a license to use them for advertising and in any other way we need to, in order to promote our service and our partner’s services. You agree we can remove, edit, display, block, make fun of, or print out and put on the refrigerator anything you upload to the service, and you can’t do shit about it. Lastly, you agree that if we ban you, you are free to whine and bitch about it all you like, and we may change our minds, but its not likely so go cool off for at least a year, or be genuinely smart about making an alternate account."

Anonymous Coward says:

The EU is really trying to push out a lot of CRAP. It’s Government over the people, the ruling class over the minions.

These things are going to start clashing with the U.S. and OUR first amendment rights. They’ll try to go along with it, but then the courts will get involved and toss this crap out. The EU internet will have be walled off. Who would want to do business in the EU at that point?

It alsmost sounds like the HOA’s in this country, where you have people that want to nick pick and run your life on your own house and property. These busy body’s with nothing better to do then to control YOU. This is taken to a new level with the EU government. Like the HOA, don’t do what they want, they’ll start issuing FINES. A 1 hour time frame, HAHA Hey if you want to take down your competition, just start posting stuff on their site that will get them big fines. At the very least force them to not allow any user-generated content. Just become a passive service. One way like TV.

Kevin Hayden (profile) says:

Why would anyone have a web presence in the EU?

Let me get this straight.

In the EU we have:

1) Right to be Forgotten
2) GDPR
3) New Copyright Directive.
4) And now this Terrorist Content Regulation.

Who in their right mind would want to expose themselves to the potentially bankrupting level of fines and penalties associated with all all of these (and possibly some others I’ve forgotten or don’t know about)?

GET OUT OF THE EU NOW.
The tail (EU Parliament) is wagging the dog (the people).
Put up a geo-block with a web page stating the reasons why your website/service
isn’t available there and tell the people to actually vote for representatives who will look after their intrerests instead of catering to whichever lobbyist happens to be running his mouth the most.

Seriously EU folks, send that message in the next elections (coming soon), before this crap starts to spread to the rest of the world. There are already politicians and lobbyists pushing for some of these things in Canada and the US now! Make sure they all know that their elected positions are at stake if they continue ignoring the will of the people.

Anonymous Coward says:

Re: Why would anyone have a web presence in the EU?

On the other hand….
EU: if you don’t comply with these directives you will be fined.
Non complied: You think I’m paying you?
EU:then you will have to face the law.
Non complied: OH NO. Please don’t send me to a European prison! I can only play PlayStation for so long!
EU:????

Ehud Gavron (profile) says:

Regulating speech on the 'net - a brief history

The commercial Internet was formed in 1993, at which point any person was able to connect, without needing an affiliation with either the government, the military (ARPAnet), or universities (NSFnet). At that time there were NO regulations about content.

Then along came the CDA, which wanted to make communications "decent" in 1996. This was a bad thing.

The ACLU sued and in 1997 the SCOTUS invalidated most of CDA but left Section 230 intact. This was a good thing.

Not content with not having "protected the children" in 1998 we have the COPA. It was enjoined from being enforced but was still in and of itself a bad thing.

In 2004 SCOTUS said the injunction stands. This was a good thing.

In 2000 Congress passed the CIPA, mandating filters in schools and libraries receiving federal funds. SCOTUS upheld this in 2003. This was a bad thing.

In 2018 we add FOSTA-SESTA which not only gut part of the Sec 230 protections in the CDA but restore some of the CIPA/COPA stuff that SCOTUS didn’t agree with in the first place.

So if you want to say that the EU’s 4 directives are harmful to the Internet, free speech, free expression, UJC etc. you are absolutely right. Unfortunately it was our narrow minded right-wing politicians who started it.

Think of the children.

Ehud

Anonymous Coward says:

Re: Re: Re:

It shouldn’t stop there.

The government should be put through a lengthy, laborious, painful process to get their access reinstated. The case should also be "dismissed without prejudice" to make sure their access can and will be revoked again if Twitter sees fit. Also the fact that this happened should also count as a strike under an invisible 3-strikes system that the government will not know about.

Finally a message should be sent to all the idiots who voted in favor of Article 13/17, saying "contesting illegitimate takedowns is a bitch, ain’t it?"

Peter (profile) says:

Why do we need this in the first place?

A similar regulation was passed – with surprisingly litte discussion – in Germany, about a year ago. Some pressure group had conocted a "study" claiming that platforms weren’t censoring "illegal" content fast enough. (Illegal as determined by the pressure group, not courts of law).

The law was passed, and evaluated a recently:
Rather than the expected 25.000 complaints, only 714 were filed. Around 90 % were determined to be unfounded, leaving around 60 to be investigated further. (Source referenced below)

We passed a law mandating compulsory censorship infrastructure across all platforms because some pressure group asked for it.

And now, the same on EU level? Is there any sound evidence – beyond the odd anecdote – that terrorist content is widely available and a threat to democracy. Because censorship is, and the least we can expect is a thorough justification for a law with such enormous potential for abuse.

sel says:

The EUSSR

What do you think the EU project is?

Why would benevolent people unleash upon their own people waves and waves of millions of scum and criminals pretending they are refugees?

What kind of organization is made of unelected millionaires who decide without any consultation about laws based on what lobbies and foreign bodies tell them to do?

the EU or EUSSR is a gigantic dictatorship whose only goal is to enslave the hundred of millions of Europeans and fisnih to destroy their civilisations (the most brilliant civilisations in human history and it includes the USA).

As long as Europeans will do nothing to stop the EU, they will be victims and will evntually disappear replaced by silamic hordes and mongrels.

Scary Devil Monastery (profile) says:

Re: The EUSSR

If there’s anything I really loathe about the EU it is that it has us standing on the same barricades as racists and neo-nazi scumbags while the more "responsible" political parties all holds their ears and sing loudly to drown out the mounting dissent over the heavy-handed dictatorial crap flowing out of Brussels.

And the irony is that the main dissent the neo-nazis have with the EU is that they think the wrong people are in charge and would be all for the new democracy-hostile legislation if the guys in charge were all just reading "Mein Kampf".

Ehud Gavron (profile) says:

Blind but do not see

First, this isn’t a discussion about the EU being a bunch of nazis. Everyone already knew that. It’s not about them being the ONLY bunch of nazis. The US has its own Donald Nazi Trump, Kirstjen Nazi Nielsen, Ted Nazi Cruz, Marco "Cuban Nazi" Rubio, etc.

It’s about the RANDOM UNDEFINED IMMEDIATE CENSORSHIP DEMANDED by those who would claim anyone is the Powers That Be of ALL INTERNET CONTENT ANYWHERE NOW so TAKE IT DOWN because WE SAID SO based on a rule in a part of the world you may not be part of NOW NOW NOW MACH SCHNELL!!!

Focus.

E

Rodney H says:

At least the EU has some level of faux debate on this. Meanwhile Australia yells hold my beer and passes a bill in two days in which abhorrent material must be removed expeditiously upon notice. No procedural fairness need apply, failure to comply may result in execs jailed or $AU800,000 fines. And it’s immaterial whether the content has been altered.

Anonymous Coward says:

Its really too damn bad that the west cannot simply flip a switch and turn the Web off for China, the EU, Russia and any other nation that wants to replace the Internet with their personal version of privately controlled Inter-Television shopping malls and propaganda mills.
I suspect a couple weeks without the web might generate enough public outcry that even the stupidest and the most paranoid of the current political regimes running the world might have to bend to the will of their subjects – a little.
Oh well, I can dream. 🙂

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