Protecting Media Freedom and Media Pluralism
Trilogue Negotiations on the Proposal for a Regulation on preventing the dissemination of terrorist content online
09 October 2020
The proposal for a regulation on preventing the dissemination of terrorist content online raises concerns with regard to freedom of expression, media freedom and pluralism. Press publishers, journalists, media organizations as well as fundamental rights agencies and international organisations have highlighted the possible repercussions on these fundamental rights throughout the legislative process.
The latest proposal allows competent authorities of member states to send (cross-border) removal orders for terrorist content to hosting providers requesting to delete the content within one-hour. The vague terms used to define terrorist content, e.g. “encouraging”, “promoting” etc. could go beyond clearly illegal terrorist acts and opens the door for misuses of the instrument on legitimate forms of communication and content, including journalistic and editorial content. This is even more alarming, as the member states are free to designate a competent authority which does not have to be a judicial authority or courts. We draw your attention to the fact that the limits of media freedom and freedom of expression must be determined by independent courts.
In addition, the possibility to send cross-border orders without any meaningful involvement of the member state where the hosting provider is located further exacerbates the need for clear and explicit protection for journalistic content. In the absence of such a clear protection of journalistic content, any member state would de facto be able to decide upon the scope of press and media freedom as well as freedom of expression in the other member state.
Considering the above, and in light of the ongoing trilogue negotiations, we firmly believe that a clear exclusion for journalistic and editorial content is of utmost importance and a necessity to protect media freedom and plurality. Such an exclusion would also be in line with the Opinion of the European Union Agency for Fundamental Rights. We therefore fully support article 1(2a) of the EP Report and call on the EU institutions to include this provision in the final trilogue compromise:
- Only a clear exclusion of journalistic and editorial content from the scope of the regulation can provide sufficient protection for media freedom. This is why we fully support article 1(2a) EP Report.
- Excluding journalistic and editorial content would not create a legal void, nor would it undermine the effectiveness of the regulation. Journalistic and editorial content is published and disseminated under editorial responsibility and publishers are responsible and liable for its content.
- The possibility of “journalists in disguise” or “fake journalists” exists in the analogue world too. Yet, this possibility does not provide any credible argument against a clear exception for journalistic content from the scope of the regulation. In fact, it would in no way undermine the effectiveness of the instrument, nor would it create a loophole for possible terrorists. If a terrorist claims to be a journalist, but de facto is not, the exception is not applicable and nothing would hinder a member state from sending a removal order. If necessary, this could even be clarified in a recital.
- It has repeatedly been stated that media content is not the target for such a regulation. Hence, given the likely repercussions on media freedom and pluralism, the exclusion is warranted and necessary.
- The European Union Agency for Fundamental Rights is of the same view. In an Opinion on the proposal, the Agency recommends the exclusion of journalistic content from the scope of the regulation.
- Similarly, the Report by (the now former) UN Special Rapporteur David Kaye and others on countering terrorism (December 2018) also raised concerns that the proposal could undermine the work of journalists.
- Moving the exclusion of journalistic content to a recital would not be sufficient. Also, the wordings in recital 9 of the EP Report and of the Council General Approach concerning the removal of content under editorial responsibility do not provide any tangible protection for press freedom in practice, nor would any new compromise which does not explicitly exclude journalistic content but would instead refer to “adequate protection”, “taking into account fundamental rights and media freedom” etc. Only a clear and explicit exclusion as provided in article 1 (2a) of the EP report can ensure the necessary legal certainty.