On 8 November 2023, ARTICLE 19 and partners – La Quadrature du Net (LQDN), Access Now, ARTICLE 19, European Center for Not-for-Profit Law (ECNL), European Digital Rights (EDRi) and Wikimedia France – filed a complaint before the French supreme administrative court, the Conseil d’État, against the French decree implementing the Regulation on addressing the dissemination of terrorist content online (also known as “TERREG”).
The organisations are asking the Conseil d’État to request a preliminary ruling from the Court of Justice of the European Union (CJEU) on the validity of the TERREG in light of fundamental rights protected by EU law.
Under this regulation, law enforcement authorities in an EU country can order a website, a social media platform or any online service provider which hosts user-generated content to block within one hour any content alleged to be of terrorist nature – across all Member States in the EU.
These service providers can also be forced to implement “specific measures” to prevent the publication of terrorist content. These “specific measures” – the choice of which remains at the discretion of the service providers – may include, for example, automated upload filters which scan all content before publication. Such automated systems are unable to take account of the context of the publication and are notoriously prone to errors that result in the censorship of protected speech such as journalism, satire, art, or documentation of human rights abuses. Furthermore, the obligation to adopt “specific measures” may violate the prohibition of imposing a general monitoring obligation under the Digital Services Act.
The litigant civil society organisations – among many others – have denounced the potential of fundamental rights violations entailed by the TERREG since the legislative proposal was published by the European Commission in 2018. While fighting terrorism is an important objective, TERREG threatens freedom of expression and access to information on the internet by giving law enforcement the power to decide what can be said online, without prior independent judicial review. The danger of law enforcement overreach andabuse of content removals has been widely reported, and will inevitably increase with this Regulation.
This legislation also reinforces the hegemony of the largest online platforms, as only very few platforms are currently able to meet the obligations under TERREG.
“The question of online content moderation is a serious one, and the answer cannot be a simplistic but dangerous techno-solutionist police censorship,” says Bastien Le Querrec, legal officer at La Quadrature du Net, the leading NGO of the coalition.
The French government is expected to file their arguments in defence of the case in the next few months. The decision of the Conseil d’État is not expected before next year.
For more information, please contact Aga Maciejewska [email protected]