Friday

18th Jan 2019

Column / Brussels Bytes

EU should not make platforms the judges of free speech

  • So-called 'keyboard warriors' from the far-right (and far-left) make life difficult for regulators to judge between free speech and hate speech (Photo: IAPP)

A judge in Scotland has ruled that a comedian named Mark Meechan committed a crime by uploading to YouTube a video of his girlfriend's pug dog executing a mock Nazi salute.

In response to the case, YouTube voluntarily blocked UK access to the video but kept it available elsewhere, albeit with comments disabled and a warning that some found it offensive.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

Meanwhile, sites beyond the reach of UK law, including the Washington Post, republished the video, leaving everyone—including British viewers—free to draw their own conclusions.

Whatever one thinks of the conviction or the law behind it, at least Meechan can say he had his day in court.

But a recent threat by the European Commission to hold platforms responsible for their users' posts would preclude such due process by pushing platforms to remove anything they are unsure about before any court has ruled it illegal, lest they find themselves on trial as well.

On 1 March, the commission issued a recommendation (a form of non-binding soft law that does not have to go through the legislature) demanding that online platforms take "proactive measures" to remove all varieties of illegal content posted by users, which it defines as "any information which is not in compliance with Union law or the law of the member state concerned."

The commission threatened regulation if platforms do not comply.

But increasing platforms' liability would drastically alter the effects of the different national laws on free speech.

The threat of fines, combined with the grey areas inherent to laws limiting what people can say, would push platforms to remove content whenever in doubt, even where a court might let it remain online—either because the court decides no crime has been committed, or because the law punishes the author without requiring any intermediary to remove the content.

The legal limits on free expression vary tremendously between European countries.

'Blasphemy' laws still apply

Nearly half of EU member states have laws against lese majeste (insulting the head of state) and about half have some form of law against blasphemy (insulting religion).

Several criminalise holocaust denial, while Poland has outlawed statements that implicate "the Polish nation" in the crimes of Nazi Germany, limiting debate about Polish collaborators.

UK communications law prohibits "grossly offensive" messages, and its courts have produced several controversial convictions, such as that of a man who joked on Twitter he would blow an airport "sky high" if it did not reopen to let him visit his girlfriend.

The judge presiding at Meechan's trial found him guilty of violating the same law.

Countries that maintain such laws also decide how to enforce them, and some do so with a lighter touch than others.

For example, the Danish penal code criminalizes lese majeste, but there are no recorded convictions.

Where the authorities do enforce laws against particular types of speech, they usually limit online platforms' liability.

Platforms are not always obliged to remove content even when courts convict someone of having committed a crime by uploading it. Whether the relevant content must come down depends on the judgement of the court and the powers given to it by the law.

German exception

Germany is an exception, where new legislation requires platforms to remove hate speech within 24 hours of a user having complained about it, rather than after a court has ruled on the matter.

Naturally, platforms should comply with court orders and be punished when they do not, but to safeguard free speech, claims of hate speech, illegally "offensive" messages, or similar allegations should be judged in court on a case-by-case basis.

If the EU makes platforms liable for what their users post, then throughout Europe, the threat of fines will pressure platforms to delete all dubious content, raising the likelihood that legal content will be removed too, limiting opportunities to challenge allegations of hate speech, and stifling public debate.

Of course, online platforms are entitled to their own rules about legal content they prohibit, such as graphic violence or pornography, but Internet users can at least choose between platforms with different terms of service, whereas they cannot pick and choose laws.

Another problem with the commission's recommendation is that it provides identical rules for almost all illegal content.

But illegal content is clearly not all the same.

Platforms can easily identify some types of obviously illegal content, such as pirated movies or child abuse imagery, whereas hateful or offensive comments are open to subjective interpretation.

Few people would mistake obscene images of abused children for protected opinion.

The recommendation does suggest tougher rules for terrorist propaganda, but even that is not always easy to separate from religious fundamentalism or political radicalism.

Thus, platforms should remove indisputably illegal content, but forcing them to do that for less obviously illegal content would threaten lawful free speech.

The major online platforms already for the most part adhere to the commission's voluntary code of conduct for illegal hate speech, which uses a common definition of hate speech that holds in all member states.

But making platforms liable for when users might violate different national laws would undermine the Digital Single Market and harm European Internet users.

The commission should withdraw both the recommendation its threat to regulate, and work with industry on voluntary practices to address clearly illegal activity, while leaving decisions about the limits to free speech to the courts.

Nick Wallace is a Brussels-based senior policy analyst at the Centre for Data Innovation. His Brussels Bytes column deals with the digital single market and data-related policy issues in the European Union

Austrian privacy case against Facebook hits legal snag

Austrian privacy campaigner Max Schrems may sue Facebook Ireland in an Austrian court but won't be able to pursue a class action suit in Austria, according to a non-binding opinion by a top EU court advisor.

How to troll the European Parliament elections

The May 2019 European parliament elections will take place in a context which make a very promising ground for protest votes and extreme views, aided by bots and algorithms.

On Morocco, will the EU ignore its own court?

If the European parliament votes in favour of the new Morocco agreement without knowing that it complies with the European Court of Justice judgement, how can it demand that other countries respect international law and their own courts?

Trump's wall vs Europe's sea

Though we would never admit it, the only difference between Trump and the EU is we don't need a wall - because we're 'fortunate' enough to have the Mediterranean.

News in Brief

  1. Minority elects Lofven as prime minister of Sweden
  2. Putin opposes EU prospects of Serbia and Kosovo
  3. Tsipras launches campaign to ratify Macedonia deal
  4. US-EU meeting in doubt after Trump cancels plane
  5. Germany and China to sign pact on finance cooperation
  6. Labour divided on second Brexit vote plan
  7. New abortion laws pave way for Norwegian majority government
  8. Another referendum 'would take a year', Downing St says

Stakeholders' Highlights

  1. International Partnership For Human RightsKyrgyz authorities have to immediately release human rights defender Azimjon Askarov
  2. Nordic Council of MinistersSeminar on disability and user involvement
  3. Nordic Council of MinistersInternational appetite for Nordic food policies
  4. Nordic Council of MinistersNew Nordic Innovation House in Hong Kong
  5. Nordic Council of MinistersNordic Region has chance to become world leader when it comes to start-ups
  6. Nordic Council of MinistersTheresa May: “We will not be turning our backs on the Nordic region”
  7. International Partnership for Human RightsOpen letter to Emmanuel Macron ahead of Uzbek president's visit
  8. International Partnership for Human RightsRaising key human rights concerns during visit of Turkmenistan's foreign minister
  9. Nordic Council of MinistersState of the Nordic Region presented in Brussels
  10. Nordic Council of MinistersThe vital bioeconomy. New issue of “Sustainable Growth the Nordic Way” out now
  11. Nordic Council of MinistersThe Nordic gender effect goes international
  12. Nordic Council of MinistersPaula Lehtomaki from Finland elected as the Council's first female Secretary General

Latest News

  1. Germany led way on EU human rights protection
  2. How to troll the European Parliament elections
  3. MEPs in Strasbourg: everywhere but the plenary
  4. Brexit delay 'reasonable', as May tries cross-party talks
  5. MEPs allow Draghi's membership of secretive bank group
  6. EU parliament backs Morocco deal despite row
  7. Barnier open to 'future relations' talks if UK red lines shift
  8. German spies to monitor far-right AfD party

Stakeholders' Highlights

  1. Nordic Council of MinistersNordic design sets the stage at COP24, running a competition for sustainable chairs
  2. Counter BalanceIn Kenya, a motorway funded by the European Investment Bank runs over roadside dwellers
  3. ACCACompany Law Package: Making the Best of Digital and Cross Border Mobility,
  4. International Partnership for Human RightsCivil Society Worried About Shortcomings in EU-Kyrgyzstan Human Rights Dialogue
  5. UNESDAThe European Soft Drinks Industry Supports over 1.7 Million Jobs
  6. Mission of China to the EUJointly Building Belt and Road Initiative Leads to a Better Future for All
  7. International Partnership for Human RightsCivil society asks PACE to appoint Rapporteur to probe issue of political prisoners in Azerbaijan
  8. ACCASocial Mobility – How Can We Increase Opportunities Through Training and Education?
  9. Nordic Council of MinistersEnergy Solutions for a Greener Tomorrow
  10. UNICEFWhat Kind of Europe Do Children Want? Unicef & Eurochild Launch Survey on the Europe Kids Want
  11. Nordic Council of MinistersNordic Countries Take a Stand for Climate-Smart Energy Solutions
  12. Mission of China to the EUChina: Work Together for a Better Globalisation

Stakeholders' Highlights

  1. Nordic Council of MinistersNordics Could Be First Carbon-Negative Region in World
  2. European Federation of Allergy and AirwaysLife Is Possible for Patients with Severe Asthma
  3. PKEE - Polish Energy AssociationCommon-Sense Approach Needed for EU Energy Reform
  4. Nordic Council of MinistersNordic Region to Lead in Developing and Rolling Out 5G Network
  5. Mission of China to the EUChina-EU Economic and Trade Relations Enjoy a Bright Future
  6. ACCAEmpowering Businesses to Engage with Sustainable Finance and the SDGs
  7. Nordic Council of MinistersCooperation in Nordic Electricity Market Considered World Class Model
  8. FIFAGreen Stadiums at the 2018 Fifa World Cup
  9. Mission of China to the EUChina and EU Work Together to Promote Sustainable Development
  10. Counter BalanceEuropean Ombudsman Requests More Lending Transparency from European Investment Bank
  11. FIFARecycling at the FIFA World Cup in Russia
  12. Counter BalanceEuropean Parliament takes incoherent steps on climate in future EU investments

Join EUobserver

Support quality EU news

Join us