A coalition of 6 organisations takes EU’s dangerous terrorist content regulation to court

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On 8 November 2023, a coalition of six organisations – 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”).

They 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 othershave 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 and abuse 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.

La Quadrature du Net (LQDN), promotes and defends fundamental freedoms in the digital world. Through its advocacy and litigation activities, it fights against censorship and surveillance, questions how the digital world and society influence each other, and works for a free, decentralised and empowering Internet.

The European Center for Not-for-Profit Law (ECNL) is a non-governmental organisation working on creating legal and policy environments that enable individuals, movements and organisations to exercise and protect their civic freedoms.

Access Now defends and extends the digital rights of people and communities at risk. It defends a vision of technology that is compatible with fundamental rights, including freedom of expression online.

European Digital Rights (EDRi) is the largest European network of NGOs, experts, advocates and academics working to defend and advance human rights in the digital era across the continent.

ARTICLE 19 works for a world where all people everywhere can freely express themselves and actively engage in public life without fear of discrimination, by working on two interlocking freedoms: the Freedom to Speak, and the Freedom to Know.

Wikimedia France is the French branch of the Wikimedia movement. It promotes the free sharing of knowledge, in particular through Wikimedia projects, such as the online encyclopedia Wikipedia, and helps to defend freedom of expression, particularly online.