“Trilogue” negotiations on the EU scheme to “prevent the dissemination of terrorist content online” are underway which may make, inter alia, upload filters mandatory.
In a series of closed-door meetings, the European Parliament and the Council (representing the member state governments) will hammer out a final text acceptable to both institutions. It’s the last chance to make changes before the Regulation gets adopted. Meetings started in October.
State of play
Let’s take a close look at the most contested similarities and differences of the Commission and Parliament positions, and break down what they would mean for you:
|Commission and Council want||Parliament wants||What this means for you|
||Your private file storage and communications, so far often end-to-end encrypted, could be subject to content screening and removal. So could private communications in closed user groups.|
||Individuals or small organisations may decide to terminate services and platforms rather than stand ready 24/7 to respond within one hour to a removal order that will never come, because 99%+ of platforms are never targeted with terrorist propaganda.|
||Media reports on terrorist attacks could disappear if the Commission’s proposal goes through. Video archives that document war crimes, for example in Syria, will partially disappear, resulting in impunity of perpetrators. Spain has prosecuted artists for satirical performances in the past, so recordings of performances could be deleted in the future.|
||Where no requirement of independence is in place, ministers could directly order the removal of content for political reasons|
||If the Commission’s approach succeeds, content you wish to access could have been removed due to orders from Member States with populist, authoritarian governments. For example, Hungary and Poland have been found in the past to disrespect the rule of law. France has also been reported to excessively request content removals.|
||Removing content globally could result in other states such as Turkey, Russia, Saudi Arabia or China requiring the removal content which, in Europe, is perfectly legal and legitimate|
||Referrals would result in the removal of content that is perfectly legal and merely violates the arbitrary rules set by a private hosting service provider.|
||Automated upload filters are censorship machines that have been proven to suppress completely legal content (e.g. documentation of human rights violations in civil wars). Even a filter with an extremely high accuracy rate close to 99% would delete more legal content than illegal content, because terrorist material is extremely rare compared to the overall number of uploads.|
Removal orders and their effects
My primary concern on the text voted by Parliament remains the so called “one-hour” rule. Many operators do not have the resources to block content within one hour of receiving an order (even at night-time). We don’t want Internet services to cease operations. Otherwise the trilogue will be about defending the Parliament’s amendments in order to protect free speech online. The Commission has so far not demonstrated willingness to accept the changes requested by the Parliament.
Despite the improvements made by the European Parliament, I still fundamentally doubt whether this regulation will effectively prevent terrorism. Even if terrorist content did cause terrorist acts (which is disputable), content “removals” are too easy to circumvent. The traditional platforms can be assumed to apply simple geolocation techniques when receiving blocking orders. They will not be required by the regulation to actually delete “terrorist content” but only to block it for EU users. It will be technically easy to circumvent such geo-blocking, for example by using foreign proxy servers. Also terrorist groups are increasingly moving away from the traditional platforms and use encrypted private communications channels or alternative platforms that will not honour European removal requests. The spreading of terrorist propaganda will hardly be contained by this regulation.
This is the schedule for the trilogue negotiations:
- First trilogue: 17/10/2019
- Technical meeting: 4-6/11/2019
- Technical meeting: 11/11/2019
- Second trilogue: 20/11/2019
- Technical meeting: 21-22/11/2019
- Technical meeting: 5/12/2019
- Technical meeting: 09/12/2019
- Third trilogue: 12/12/2019
Negotiations will continue in 2020.
The Parliament will be represented in the trilogues by the following members of the Civil Liberties Committee:
Rapporteur: JAKI Patryk (ECR)
The Committee on Internal Market and Consumer Protection (IMCO) will be represented by the Rapporteur for Opinion KOLAJA Marcel (Greens/EFA), while the Committee on Culture and Education (CULT) will be represented by the Rapporteur for Opinion WARD Julie (S&D)
Here are some useful material that could guide you through the process thus far.