Without making too much noise, on 29 April, 2021 the European Parliament gave the green light to the so-called TERREG regulation, i.e. the European legislation designed to counter the spread of terrorist content online through the EU. In practice, in order to prevent the dissemination of terrorist propaganda material via the Internet, Member States are authorized to impose the removal of such online content with an unusual speed: 1 (one) hour.
It could seem a proof of due efficiency in the face of the dangerousness of certain phenomena such as online terrorism, but if we then reflect on the application methods, the picture becomes obscure: the authority in charge of this function could also be simple police offices and the concept of “terrorist content” is by definition subjective and unclear. In other words, should a Member State appoint as Interior / Home Minister a political figure with sharp methods and even flexible ideas on the rule of law, the application of this regulation could become funcy. The TERREG applies not only to social platforms, but also to websites and simple blogs. To give an example taken from the concrete Italian news, if in certain circumstances a boat of illegal immigrants can be considered as a foreign invasion force by the Home Office, then even the definition of terrorism on the Internet could become a bit loose.
But the case can become even more complicated, because the TERREG regulation was also designed for transnational cases. In other words, the authority of any EU country may request the removal of online content (posts, publications) that are uploaded by a person having servers in another EU country. For example, the Italian judicial police could request the removal of content, published on a French site, which deal with attacks in Italy: it could be actual terrorist propaganda or a simple analysis of the Mitterand doctrine, however the initial judgment will probably be up to simple police offices, not even a judge. Examples do not stop there: a Hungarian ministry could ask an Italian provider to remove some content that shows Orban’s face with a Hitler mustache; or to cancel a speech by the billionaire Soros, who is not welcomed by the national government; or, finally, to close the page of an NGO that helps migrants in the Balkans. All contents that in Budapest, when the tension rises, could be labeled as “terrorists”.
In fact, there is no univocal normative definition to define a content as “terrorist propaganda” and it is objectively difficult to agree on a legislative definition. In the end, it will be the authority in charge of carrying out this assessment, while the authority of the country of destination (where the person who published the post in question is located) will probably be limited to acting as postman. In short, the phrase “there is mail for you” could in the future be a harbinger of real surprises for social platforms, websites or simple blogs, especially if a threatening letter from a Hungarian minister from Orban came out of the envelope. Also this blog could become a target, by the way.
The issue of spreading terrorist content online is tremendously serious and in fact the proposal for the TERREG regulation was supported by France and Germany, which are certainly countries that respect civil rights and freedom of the press. But even in France a similar law, the so-called the “Avia” law had been declared unconstitutional by the Conseil Constitutionel precisely because it was considered to be detrimental to freedom of expression. In other words, we are in a field where identifying a balance point between the various interests is extremely complex. It is therefore surprising that the European Parliament gave the green light without even a debate in plenary (it seems to have been a procedural incident).
Therefore, in the future Europeans will have some more good reason to entrust delicate governmental posts, such as the Home Minister, to politicians or technicians who are credible enough to respect the rule of law and democracy. What is more, we may begin to come across requests from foreign authorities, completely unknown, who claim as terrorist content that, in our home, does not seem so at all. The case of Orban may seem the most striking at the moment, but let’s not forget that the label of “terrorist” can appear wherever there are turbulent regional minorities (Spain), large disparities of views on what is democratic or not (Poland and Hungary), deviant opinions on the subject of a pandemic (Germany), or prejudices about minority religious communities (a bit everywhere). In other words, so that #TERREG does not become a monster, the European Union and its Member States will have to raise the threshold of attention towards respect for the rule of law and democratic principles within itself. If another Member State were to start an authoritarian drift, this could immediately become a problem in our country too, and we will find out by post.
Here a sharp analysis of the TERREG Regulation article by article:
- Scope and ambit of application (Art. 1): The TERREG Regulation applies to hosting service providers offering services in the European Union, irrespective of their place of main establishment in the EU, when they disseminate information to the public. However, please note that material disseminated to the public for educational, journalistic, artistic or research is excluded from the application of the TERREG.
- Domestic removal orders (Art. 3): The competent authorities (that is to say, the bodies designated by each government) can require hosting service providers to remove or disable access to terrorist content, with a very short deadline: one-hour (this has been on oof the point a major controversies of the regulation). The hosting service provider can inform the competent authority that it cannot comply on grounds of force majeure or de facto impossibility, including justifiable technical or operational reasons, or when the removal order is manifestly wrong or does not contain sufficient information for its execution.
- Cross-border removal orders (Art. 4): If the hosting service provider does not have its main establishment or legal representative in the Member State of the competent authority that issued the removal order, that authority can entrust (by submitting a copy of the removal order) the competent authority of the Member State where the hosting service provider has its main establishment (or where its legal representative resides or is established). The latter authority can scrutinise the removal order and adopt a reason decision if it seriously or manifestly infringes the TERREG or the fundamental rights and freedoms guaranteed by the European Fundamental Rights Charter.
- “Specific measures” (Art. 5): An hosting service provider may be considered “exposed” to terrorist content when it has received two or more final removal orders in the previous 12 months. In such a case, it shall take specific measures to protect its services against the dissemination to the public of terrorist content, including: “appropriate technical and operational measures, such as appropriate staffing or technical means”; easily accessible and user-friendly mechanisms for users to report or flag content; mechanisms to increase the awareness of terrorist content on its services, such as mechanisms for user moderation, as well as “any other measure that the hosting service provider considers to be appropriate”. If the specific measures are not considered to be compliant, the hosting provider can be addressed an ad hoc decision.
- Preservation of content and related data (art. 6): Hosting service providers shall retain terrorist content for at least six months, to be available for administrative or judicial review proceedings.
- Transparency: Article 7 obliges hosting service providers that have been taking actions to address the dissemination of terrorist content to publish yearly transparency reports. Article 8, on the other hand, provides for the publication of annual transparency reports by competent authorities.
- Complaint/redress: Pursuant to art. 10, hosting service providers have to set-up an effective and accessible mechanism allowing content providers to complan in case their content has been removed or access thereto has been disabled. According to Art. 11, hosting service providers should inform content providers when they remove their content.
- Legal representatives/extra-territorial effects (Art. 17): Hosting providers established outside of the EU and without a main establishment in the Union shall designate a legal representative in charge of compliant with the Regulation (who may be held liable for infringements).
- Penalties (Article 18): In imposing fines, Member States have to take into account the nature and size of the hosting service provider, in particular whether it is a micro, small or medium-sized enterprise. In case of systematic or persistent failure to comply with removal orders, the TERREG Regulation foresees financial penalties up to 4 % of the hosting service provider’s global turnover of the preceding business year.