Statement

New EU legislation must not throttle online flows of information and ideas

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ARTICLE 19

12 Sep 2017

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ARTICLE 19 is concerned about proposals in the revised EU Directives on Audiovisual Media Services (AVMS) and on Copyright, scheduled to be adopted before the end of 2017. The ongoing revision of the AVMS Directive proposes to use social media companies as law enforcement agencies under the guise of self-regulation or co-regulation. These changes would seriously undermine the protection of the right to freedom of expression and would lead to the suppression of legitimate expression online.

In May 2016, the European Union (EU) initiated the revision of the AVMS Directive which seeks to facilitate the free circulation of television programs within the EU. The revision process is now in the stage of ‘trilogue’ between the Council of the European Union (the Council), the European Parliament (the Parliament) and the European Commission (the Commission). It is expected that the new version of the AVMS Directive will be adopted before the end of 2017.

The revision aims to respond to challenges linked to the evolution of media landscapes and the emergence and growth of new actors in the production and distribution of audiovisual content. Practices in the consumption of television – both news and entertainment – have obviously changed radically in recent years, notably with the development of on-demand television and online distribution. In this context, the Commission wants to ensure a level playing field between traditional and new media actors.

The revision also attempts to impose a form of regulation on video-sharing platforms, a loosely defined category that would include social media (see Article 1aa of the Commission’s proposal). The proposed regulation pursues the well-meaning objectives of protecting minors and prohibiting incitement to hatred and violence. Video-sharing platforms would be expected to adopt undefined ‘appropriate measures’, under the supervision of national regulatory authorities for audiovisual media, in order to remove content that is harmful to minors or that incites to hatred (see Article 28a of the proposal).

In parallel, the EU has also initiated the adoption of a new Directive that would reform certain aspects of the European copyright framework. The proposal would create a duty for internet service providers that host third-party content to adopt undefined ‘appropriate measures’ to ensure that no material protected by copyright is distributed through their servers (see Article 13 of the proposal). While the original proposal is being amended by the European Parliament, it is too early at this stage to conclude that it can be considered as discarded.

ARTICLE 19 has long considered that a certain level of regulation of broadcast media could be compatible with international standards on freedom of expression because it is necessary to ensure respect for pluralism and diversity, as well as other objectives of general interest, in the allocation of spectrum. We accept that the objective of applying similar rules to online television-like services that are disrupting the traditional television landscape makes sense. At the same time, any restriction on freedom of expression should always be compatible with the three-part test of international law; in particular, public regulation should pursue a legitimate objective and the means chosen to achieve this goal should be necessary and proportionate.

ARTICLE 19 is concerned that both proposals fail to meet these standard. If adopted, the revised directives will seriously restrict online flows of information and ideas and endanger protection of the right to freedom of expression. In particular:

1) The revised directives undermine a legal framework known as the limited liability of Internet intermediaries. Under this framework, internet service providers that host third-party content do not have to monitor everything that is uploaded on their servers and should not be held liable for third-party content, unless they become aware of the unlawful character of some material. Whilst not perfect, this mechanism serves the purpose of facilitating the exercise of freedom of expression. By contrast, when they are forced to accept liability for third-party content, intermediaries are encouraged to remove preemptively any material that is alleged to be in breach of the law.
The EU had integrated the principles of limited liability into EU law with the adoption of the E-Commerce Directive (EC Directive) in 2000. While both legislative projects claim to be compatible with the EC Directive, their draft provisions would clearly result in a de facto revision of the situation of Internet intermediaries, in effect rendering them responsible for enforcing the law – with the added concern that the rules they would have to apply would not have to be compatible with international standards on freedom of expression. In a worrying replication of the EU Commission’s decision to adopt a “Code of Conduct on Hate Speech”, Internet intermediaries are called on to deputise for public authorities and they are invited to apply rules of their own making without any of the safeguards provided by international human rights law.

2) The draft provisions on video-sharing platforms in the proposed revision of the AVMSD fail to distinguish between media companies and Internet intermediaries as they ignore the different functions that they fulfil. We note that the main role of Internet intermediaries – such as social media platforms – is two-fold. First, they host third-party content that is produced, edited and uploaded without any intervention by the hosting service provider. Second, they distribute third-party content to their audiences and individual users, using a combination of algorithms and human decisions to decide what will be findable, visible and accessible on a given individual feed, wall or page. We are aware that dominant social media actors are powerful actors that hold considerable power over the public sphere and the agenda of public conversations. However, we believe this situation calls for a new approach, not the simple and crude replication of rules that were designed for a different industry.

Self-regulation of social media: the way forward

ARTICLE 19 believes that the only means of ensuring compatibility of both directives with European and international law on freedom of expression is the removal of the problematic provisions.

ARTICLE 19 also finds that the elaboration of new rules for social media and other Internet intermediaries must be conceived as a learning process of considerable importance for democratic societies. We propose that self-regulation – a system created through the agreement of participating actors – could be an appropriate methodology to elaborate these new rules and principles, provided that certain conditions are met. The draft EU legislative proposals fail to define such guarantees.

In ARTICLE 19’s view, at a minimum, a self-regulatory mechanism need to be independent from the companies it would regulate. Its composition should be open to participation from all stakeholders, including civil society organizations and freedom of expression experts. It also needs to be appropriately funded in order to be able to achieve its goal. The role of the self-regulatory body would be to draft a charter of ethical standards for social media, which it could then apply either through general recommendations to its members or the examination of individual complaints. In a manner comparable to a press council, its powers would be limited to light sanctions, such as the publication of its decisions, a right of correction, the removal or re-upload of content, an explanation of the reasons for removal, or an apology.

The openness of the self-regulatory process would ensure that important conversations on the definition of rules and principles for content moderation on social media would happen in a transparent and public forum.

ARTICLE 19 calls on EU institutions to remove the problematic provisions from the future Directives on AVMS and on Copyright in order to avoid undermining the regime of limited liability for Internet intermediaries.

ARTICLE 19 also encourages all actors, public and private, to engage in the development of genuine, independent self-regulation mechanisms that are protected against pressures from public and private powers, are open to meaningful participation from civil society organisations, and provide an effective framework for the implementation of international standards on freedom of expression in relation to content moderation on social media.