Online platforms have now been provided with clear guidance from the European Commission as to the measures which they must take in order to prevent, detect and remove illegal online content inciting hatred, violence and terrorism.
The EU’s e-Commerce Directive requires online platforms such as Facebook, Twitter and the like to act “expeditiously” to remove illegal content when they become aware of such content.
What is “illegal content” is determined by specific legislation at EU level as well as by national law. It includes material such as incitement to terrorism, illegal hate speech and child sexual abuse material. However, currently, the law does not clearly define the action which must be taken by such online platforms in order to tackle illegal content.
The steps to be taken when faced with illegal content are usually decided on a case-by-case basis depending on the specific circumstances of each case. A harmonised and coherent approach to the removal of illegal content does not therefore currently exist in the EU. With the surge of illegal online content, the Commission has now deemed it important to ensure that online platforms act proactively to tackle any illegal content which they host.
In its guidelines, the Commission is proposing a number of practical measures to ensure faster detection and removal of illegal online content by online platforms.
Currently, the law does not clearly define the action which must be taken by such online platforms to tackle illegal content
The guidelines provide that these platforms should cooperate closely with competent national authorities, by appointing points of contact to ensure that they can be contacted rapidly to remove illegal content and to share evidence with such authorities. To speed up detection, online platforms are being encouraged to work closely with trusted flaggers, that is, specialised entities with expert knowledge on what constitutes illegal content. Additionally, they should establish easily accessible mechanisms to allow users to flag illegal content and to invest in automatic detection technologies.
The guidelines advocate that any illegal content should be removed as fast as possible. The Commission is in fact ruminating over the idea of introducing specific timeframes where serious harm is at stake, for instance, in cases of incitement to terrorist acts. Platforms should clearly explain to their users their content policy and issue transparency reports detailing the number and types of notices received.
They are also being encouraged to take measures to dissuade users from repeatedly uploading illegal content. In fact, in its guidelines, the Commission strongly militates in favour of the use and development by platforms of automatic tools to prevent the re-appearance of previously removed content. On the other hand, internet companies are being urged to introduce safeguards to prevent the risk of over-removal of content in such a way that freedom of expression is not impaired.
When it comes to content which is objectionable but not necessarily illegal, the EU’s Audiovisual Media Services Directive requests video-sharing platforms to protect minors from harmful content. The guidelines do not request online platforms to remove such content but they urge online platforms to create tools to allow users to identify and avoid minors being exposed to harmful content. Neither do the guidelines make provision for those measures which must be taken in respect of fake news, which is not necessary illegal.
In the face of the spread of acts of terrorism across Europe, the European Commission is doing its utmost to safeguard the security and safety of EU citizens. In fact, these guidelines are being seen by the European Commission as a first step towards the publication of an entire anti-terrorism package. Online platforms are expected to act responsibly and expeditiously when faced with illegal content and this also to maintain citizens’ trust and confidence in the digital market.
Mariosa Vella Cardona, M’Jur, LL.D., is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.
mariosa@vellacardona.com