1. Why is the EU calling for policy measures (including censorship) against social media?
As of April 2017, fighting online hate speech has been prioritised at EU level further to several terrorist attacks (e.g., in London, Paris, Berlin and Brussels). Critics have argued that such attacks were to a great extent assisted by the intensive use of social media by terrorist groups to instigate violence and radicalise people, especially youngsters.
In this context, heated debates have taken place at EU level on the prevention and removal of online hate speech and the enactment of legislation that would define a common approach thereto. Furthermore, a number of views expressed in the European Parliament favoured censorship and public control of social media outlets. These views are shared by the British Prime Minister Theresa May, who recently called for new EU regulations and international agreements intended to “deprive the extremists of their safe spaces online”.
2. What is hate speech?
There is no universally agreed-upon definition of what constitutes hate speech. Nevertheless, specific guidance for defining the concept has been provided by certain competent EU bodies. As such, “hate speech” is meant to cover all forms of expressions that spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including by reference to a non-exhaustive list of personal characteristics or statuses (e.g., race, colour, language, religion or beliefs, nationality or national or ethnic origin, descent, age, disability, sex, gender, gender identity and sexual orientation). Consequently, when grounded on these personal characteristics, hate speech may also target data that can easily qualify as “personal data” (e.g. age).
3. The EU’s tentative steps towards fighting the growing hate speech challenge
The official plenary debate in the European Parliament on April 2017 hosted a robust discussion between its members on how best to tackle the proliferation of online hate speech, with a host of proposals being put forward, including:
- Censorship or public control of social media;
- Imposing significant fines on media providers; or
- Fostering “media literacy” (i.e., the ability to access, analyse, evaluate, and create media).
In contrast, the members of the European Commission seem to favour a more peaceful approach, by cooperating with the IT industry and developing media literacy so that young people know how to critically assess information.
In response to the terrorist attacks in Paris and Brussels in 2016, the European Commission intensified its work on fighting hate speech – a campaign initiated several years ago with the adoption of the Council Framework Decision 2008/913/JHA. Following consultations with the leading social media companies (Facebook, Twitter, YouTube and Microsoft), it published a Code of Conduct aimed at fighting online hate speech. This Code of Conduct includes a series of public commitments, voluntarily accepted by these four companies, as follows: (i) review of valid removal notifications for hate speech in less than 24 hours; (ii) removal or disabling access to such content, if necessary; (iii) continuous development of internal procedures; and (iv) staff training. A recent evaluation of the Code of Conduct, carried out by NGOs and public bodies in 24 EU countries (including Romania), revealed significant progress by the four companies on the commitments in the Code of Conduct. However, critics and some EU officials argue that these results are not yet satisfactory.
Further to these actions, the European Commission launched a High-Level Group on combating Racism, Xenophobia and other forms of Intolerance to step up EU cooperation and coordination regarding hate speech and monitor the implementation of the Code of Conduct. This group brings together Member States’ authorities, the European Parliament, the Council of Europe, civil society organisations, community representatives and other relevant international bodies. The European Commission has also launched several calls for project proposals that will be funded from EU grants.
The Council of Europe is also actively involved in fighting online hate speech. To this end, it has set up a dedicated body for human rights, i.e., the European Commission against Racism and Intolerance (ECRI), which has devised a number of different policy responses, including legislative, self-regulatory and structural measures.
As reported by the media, following the terrorist attack in Manchester, the ministers of the Council of Europe issued proposals on 23 May 2017 that require media providers to block videos containing hate speech, excluding live streaming from their platforms. If these proposals are agreed upon by the European Parliament, we will have the first legislation at EU level to hold social media companies accountable for hate speech published on their platforms. At this stage, it is not clear whether an enactment will be passed. However, censorship is a possibility, taking into consideration: (i) the opinions expressed in the plenary debate of April 2017; and (ii) the censorship enactment passed by the European Parliament on February 2017 for cutting down live broadcasts of parliamentary debates targeting hate speech and removing records video/audio traces of offensive remarks.
The opinions expressed by the EU Member States on censorship are divergent. German lawmakers approved a controversial law imposing steep fines of up to 50 million euros on social media providers for failing to swiftly delete posts deemed to contain hate speech. Such a restrictive measure was highly criticised by worldwide media, for the following reasons:
- The law places a heavy burden on media providers for swift censorship in the absence of clear criteria defining hate speech;
- Freedom of speech will be affected as providers are likely to delete many posts just to be on the safe side and avoid fines;
- Courts, rather than social media, may determine what online speech contravenes German law; nevertheless, this approach is problematic due to the issue of determining which courts hold jurisdiction over companies such as Facebook. For instance, in 2016, a court in Hamburg denied a complaint filed against Facebook because the company’s European operations were headquartered in Ireland.
Digital, advocacy groups and other critics in Europe have raised serious concerns about the new German law, which could be seen as a precedent to be followed by other EU countries – the more so with certain states having tried in the past to enact similar regulations (e.g., France) and recently UK officials having proposed similar fines for media providers if they fail to remove hate speech content. Indeed, such an approach will deepen the conflict between the freedom of expression and the fight against hate speech.
4. Censorship / Public control of social media – Is this the right approach?
Could media freedom be subject to legal restrictions?
The restrictive measures regarding censorship and public control have raised many concerns about protecting, or not, “freedom of expression”, while also protecting the victims of hate speech and other core EU values (e.g., tolerance, non-discrimination, dignity).
The European Court of Human Rights (ECHR) had already expressed, by 1976, its opinion on what the term “right to freedom of expression” indicated and its significant role in a democratic society. According to its repeated rulings, grounded on the provisions of the European Convention on Human Rights, the ECHR holds that freedom of expression:
- Constitutes one of the essential foundations of a democratic society, a basic condition for its progress and for the development of every individual;
- It necessarily covers not only “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also expression that may “offend, shock or disturb” the State or certain groups in society [n., which is not the same thing as a right to offend];
- May be subject to any restriction (i.e., “condition”, “restriction” or “penalty”) which is “proportionate to the legitimate aim pursued”; such an approach is meant to protect other core European values (e.g., “tolerance” and “respect for equal dignity”) affected by hate speech.  Furthermore, the restriction must be construed strictly, and the need for any restrictions must be established convincingly, EU Member States having a certain margin of appreciation in assessing it.
Along the same line of reasoning, the ECHR has argued for the importance of media freedom. To this end, it emphasises that the Internet has become one of the main means for individuals to exercise their right to freedom of expression today, as it offers essential tools for participation in activities and debates concerning politics or matters of general public interest. The ECHR ruled against the blanket blocking of access to an entire Google Sites website (Ahmet Yildirim v. Turkey) and to the whole of YouTube (Cengiz and Others v. Turkey), on account of other illicit contents uploaded by third parties on these sites.
Is censorship / public control of media a practical approach?
It is debatable whether the competent EU bodies and national authorities should impose censorship and public control, as long as:
- The EU’s broad concept of “hate speech” covers many forms of expression which are varied and complex; therefore the approaches must also be appropriately differentiated;
- Most EU states have adopted legislation banning expression amounting to hate speech, but the definitions differ when determining what is being banned; therefore, different national approaches to hate speech may easily give rise to discriminatory solutions;
- Particular limitations of media freedom by censorship should be applied in a non-arbitrary matter and subject to ex post judicial control;
- There is no sound and comprehensive common legal framework by which all the EU should abide; such a legal framework should be a prerequisite before imposing radical measures such as blanket censorship;
- There are many measures which may prove successful, e.g., the development of web tools fighting online hate speech (such as reporting systems), awareness-raising activities, the exchange and monitoring of good practice (including with the help of the above-mentioned High-Level Group), the use of artificial intelligence to automatically remove potentially extremist material and banned news sites;
- The major media providers have strengthened their efforts along with the European Commission by implementing the Code of Conduct and applying many worldwide training programmes and internal methods (web tools and artificial intelligence) for fighting hate speech;
- Cooperation between media and public authorities may bring better results than censorship, a point of view that seems to be shared by the most important EU commissioners;
- Restrictive measures regarding censorship / public control may be subject to abuse from state authorities, increasing the power of the present European order (as many critics have noted in the media).
At this stage, the blanket censorship of media exercised by public authorities seems to be a common approach for states with a democracy in development. In 2016, five African countries, including Ethiopia and Uganda, disrupted the Internet during elections, while Kenya announced that it would act similarly in August 2017. Critics have strongly argued that such an approach is high-handed and open to abuse. One recent notable assertion was that “the free and open Internet becomes its own medicine because people are also using it to counter hate speech and rumours. But if we switch it off, the rumours will find other darker avenues and not be able to be counteracted.”
Although social media is an important tool used by terrorist groups to promote hate speech, it is not the only one they use to spread their messages. In such a context, many critics have argued that restricting the media (as certain EU officials have proposed) may not necessarily be the best solution. On the contrary, the focus should be primarily placed on other areas, such as raising public awareness around hate speech (especially among youngsters targeted by terrorist groups) and implementing a uniform EU regulation on “hate speech” – by defining this concept, determining appropriate measures for preventing and sanctioning hate speech, both by the public and media providers.
 http://www.europarl.europa.eu/news/en/headlines/eu-affairs/20170331STO69330/fake-news-how-to-counter-misinformation; http://www.europarl.europa.eu/news/en/press-room/20170329IPR69072/hate-speech-and-fake-news-remove-content-impose-fines-foster-media-literacy
General Policy Recommendation No. 15: Combating hate speech from March 2016 of the European Commission against Racism and Intolerance (ECRI) (http://www.coe.int/t/dghl/monitoring/ecri/activities/GPR/EN/Recommendation_N15/REC-15-2016-015-ENG.pdf)
 The concept of “media literacy” is detailed by the Council of Europe within the ”Media Regulatory authorities and hate speech, July 2017 edition, pages 86-87 (https://rm.coe.int/media-regulatory-authorities-and-hate-speech/16807338f5)
 EC Communication outlining actions in seven specific areas where cooperation at EU level could effectively support Member States (http://europa.eu/rapid/press-release_IP-16-2177_en.htm)
 Handyside v. the United Kingdom judgment of the ECHR, para 49
 Erbakan v. Turkey judgment of the ECHR, para 56; Gunduz v Turkey judgment of the ECHR, para 40
 Surek v. Turkey judgment of the ECHR, para 58
 Ahmet Yildirim v. Turkey judgment of the ECHR, para. 54