Friday

22nd Nov 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 20 year's of archives. 30-day 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

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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.

Watershed moment for rule of law in Hong Kong

As EU foreign affairs ministers meet in Brussels, we have seen unarmed protestors in Hong Kong shot at point blank range, others bloody and beaten, and then incarcerated over the border in mainland China in prison camps.

Column

Don't lead Europe by triggering its fears

For a long time, Europe's strategic chattering class has been wondering what would happen if you took the US out of Europe's security architecture.

EU investment bank 'wide open to abuse by fraudsters'

Fundamental reforms are needed if the EIB is to become more accountable, democratic and transparent. Establishing a firm grasp on corruption to ensure that public money no longer feeds corrupt systems is a vital first step.

News in Brief

  1. EU parliament votes on new commission next week
  2. Berlusconi wants Europe to be a military global power
  3. Orban ordered to apologise over 'misleading' Soros survey
  4. EPP to decide on expelling Fidesz by end of January
  5. Rowdy anti-corruption protest in Malta
  6. Ambassador: Trump ordered Ukraine election meddling
  7. EU links Libyan government to human trafficking
  8. Greek PM on migration: 'Greece has reached its limits'

EU investment bank 'wide open to abuse by fraudsters'

Fundamental reforms are needed if the EIB is to become more accountable, democratic and transparent. Establishing a firm grasp on corruption to ensure that public money no longer feeds corrupt systems is a vital first step.

European beekeeping in crisis

Europe's bee population is dying. The number of pollinator species threatened by extinction is increasing each year, and human activity is the main cause.

Stakeholders' Highlights

  1. Nordic Council of MinistersEarmarked paternity leave – an effective way to change norms
  2. Nordic Council of MinistersNordic Climate Action Weeks in December
  3. UNESDAUNESDA welcomes Nicholas Hodac as new Director General
  4. Nordic Council of MinistersBrussels welcomes Nordic culture
  5. UNESDAUNESDA appoints Nicholas Hodac as Director General
  6. UNESDASoft drinks industry co-signs Circular Plastics Alliance Declaration
  7. FEANIEngineers Europe Advisory Group: Building the engineers of the future
  8. Nordic Council of MinistersNew programme studies infectious diseases and antibiotic resistance
  9. UNESDAUNESDA reduces added sugars 11.9% between 2015-2017
  10. International Partnership for Human RightsEU-Uzbekistan Human Rights Dialogue: EU to raise key fundamental rights issues
  11. Nordic Council of MinistersNo evidence that social media are harmful to young people
  12. Nordic Council of MinistersCanada to host the joint Nordic cultural initiative 2021

Latest News

  1. EPP congress pledges 'moderate' climate solution
  2. EPP wants to re-open accession talks with Balkans
  3. New EU financial instruments needed
  4. Binding measures to expand gender balance
  5. Watershed moment for rule of law in Hong Kong
  6. EU Africa envoy: Europe needs to look beyond migration
  7. New calls for Muscat to resign over journalist's murder
  8. Tusk pledges 'fight' for EU values as new EPP president

Stakeholders' Highlights

  1. Vote for the EU Sutainable Energy AwardsCast your vote for your favourite EUSEW Award finalist. You choose the winner of 2019 Citizen’s Award.
  2. Nordic Council of MinistersEducation gets refugees into work
  3. Counter BalanceSign the petition to help reform the EU’s Bank
  4. UNICEFChild rights organisations encourage candidates for EU elections to become Child Rights Champions
  5. UNESDAUNESDA Outlines 2019-2024 Aspirations: Sustainability, Responsibility, Competitiveness
  6. Counter BalanceRecord citizens’ input to EU bank’s consultation calls on EIB to abandon fossil fuels
  7. International Partnership for Human RightsAnnual EU-Turkmenistan Human Rights Dialogue takes place in Ashgabat
  8. Nordic Council of MinistersNew campaign: spot, capture and share Traces of North
  9. Nordic Council of MinistersLeading Nordic candidates go head-to-head in EU election debate
  10. Nordic Council of MinistersNew Secretary General: Nordic co-operation must benefit everybody
  11. Platform for Peace and JusticeMEP Kati Piri: “Our red line on Turkey has been crossed”
  12. UNICEF2018 deadliest year yet for children in Syria as war enters 9th year

Stakeholders' Highlights

  1. Nordic Council of MinistersNordic commitment to driving global gender equality
  2. International Partnership for Human RightsMeet your defender: Rasul Jafarov leading human rights defender from Azerbaijan
  3. UNICEFUNICEF Hosts MEPs in Jordan Ahead of Brussels Conference on the Future of Syria
  4. Nordic Council of MinistersNordic talks on parental leave at the UN
  5. International Partnership for Human RightsTrial of Chechen prisoner of conscience and human rights activist Oyub Titiev continues.
  6. Nordic Council of MinistersNordic food policy inspires India to be a sustainable superpower
  7. Nordic Council of MinistersMilestone for Nordic-Baltic e-ID
  8. Counter BalanceEU bank urged to free itself from fossil fuels and take climate leadership
  9. Intercultural Dialogue PlatformRoundtable: Muslim Heresy and the Politics of Human Rights, Dr. Matthew J. Nelson
  10. Platform for Peace and JusticeTurkey suffering from the lack of the rule of law
  11. UNESDASoft Drinks Europe welcomes Tim Brett as its new president
  12. Nordic Council of MinistersNordic ministers take the lead in combatting climate change

Join EUobserver

Support quality EU news

Join us