The EU’s project to censor the web: without legal basis, without judicial control

the_worst_thing_about_censorship-4ea871c-introThe European Commission has announced that they are partnering with Facebook, Google (and YouTube), and Microsoft to combat “illegal hate speech” online in the EU. 

Supposedly we should all be grateful for this initiative. We would, were it not that the powers that be have a very selective understanding of “hate speech” that might lead them to censor, or call for the censorship of, any utterance that is not in conformity with their own opinions. In their world-view, recalling that abortion means to kill a human being, or that marriage is between two persons of different sex, may be “insultory” to baby-killers and sodomites, who must be shielded from such simple but disagreeable truths.

As one has seen in the context of last year’s referendum on marriage in Ireland, the US social media companies with whom the Commission seeks to co-operate, most of which have their European HQ in Ireland, are not supportive, but indeed hostile to genuine moral values. They interfered in the democratic process by pumping foreign money into the campaign and also intimidating their staff to vote Yes and to campaign on their own private social media accounts for this result.

So the danger with this formidable combination of political and financial power is that “mission creep” will take place, pushing the abortion/LGBT agenda and their loose definition of “hate speech” instead of sticking to the one in the EU Framework Decision of 2008.

By way of legal background, this Framework Decision was a specific instrument designed to combat racism and xenophobia and foresees the criminalisation of public incitement to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin, not a bad thing per se. It has been in force since 2010.

But criminalisation implies that reprehensible behaviour will be assessed by a judge in a transparent manner and on the basis of democratically adopted laws, not by a private company according to its own code of “values”.

As criminal law remains essentially a national matter within the EU system, Framework Decisions are basically a sort of “lowest common denominator”. So, for example, the 28 Member States of the EU agree a definition of what constitutes incitement to violence and hatred, as well as a minimum penal sentence. Afterwards it is up to each state to adopt its own laws giving effect to these principles, and only these laws are enforceable in the state in question. Policing the law is also up to the states individually and the EU plays no role in this.

The “Code of Conduct” launched this week is not an EU instrument, is not in any way legally binding and, in any case, is only binding on those IT companies that sign up to it. While there has been no new EU legislative proposal therefore, that does not mean that we should ignore this development because of the partners involved, their track record, and the risk of abuse, particularly “mission creep” in the abortion/LGBT direction.

We should not underestimate the efficiency of such “non-binding” tools. This is really dangerous because what it means is that a very efficient censorship is taking place without legal base and without judicial control. The real goal here seems to be to create a pseudo-legislative excuse for tech companies to censor content. This approach gives them the ability to say “we’re just following the EU code of conduct for hate speech” when a complaint arises, and at the same time there is nothing that requires audits, controls, etc. to ensure that the censorship actually complies with the Framework Decision.