The EU Terror­ist Content Regu­la­tion shows that we still don’t know how to regulate online hate

By Emma Olsson

Lately, it has become difficult to understand who’s regulating our online behaviour. Social media users may be aware of the dos and don’ts of posting—no live-streaming acts of terror, no reckless posting of female nipples—but do we know where these restrictions are coming from? The platforms themselves? The law? Both?

On 17 April 2019, the European Parliament passed a measure to tackle terrorist usage on internet hosting services. The proposed law (referred to as the EU Terrorist Content Regulation, TCR) will give platforms one hour to remove terrorist content. Those who persistently refuse to abide by the law may face a significant financial backlash, risking a 4 percent sanction of their global annual turnover. The law is mainly targeted at the largest, most ubiquitous platforms (Facebook and Twitter) who have the financial resources required to hire content moderators or implement filters.

The passing of this rule appears to be a great victory for anyone worried about terrorists using social media to communicate or spread violent images. But what does it mean when platforms and governments join forces in regulation? Though platforms would not be required to build filters, as it was originally feared by those claiming the regulation would violate EU digital law, they would be subject to government regulations in a different way. 

There are a couple of issues with the regulation itself. Firstly, what constitutes terrorist content? The legislation makes vague references to content that incites terrorist acts, but public concern today seems more geared towards the mass spread of terrorist footage via social media. The live-streaming of the shooting in Christchurch, New Zealand no doubt contributed to the regulation being revisited in April (it was originally proposed in September 2017). Live-streaming would broaden the definition, though any definition of terrorist content is troubled by the term itself. In 2019, we still struggle with crafting a cultural consensus surrounding terrorism (what its definition is, who perpetrates it, and how we should handle it).

Second of all, filters will not be forcibly instituted, nor will moderation. What would, then, a feasible alternative look like? How will platforms be expected to uphold these rules without some combination of filtering or human moderation? In other words, if we want to keep certain types of content off of our feeds, we need to decide how this could be done in a way that won’t straight out censor users, nor push away smaller platforms that can’t afford robust moderation services. The proposal is admittedly vague, and not just in its content, but in everything surrounding it. 

The desire to regulate terrorist content contributes to a large scale conflation between platform guidelines and supra-national law. Moreover, we see user guidelines merging with government mandates. The same phenomenon could be noted in the Tumblr case from December 2018, in which Tumblr’s guideline change to censor nudity fit snugly into the narrative provided by the U.S. government’s Fight Online Sex Trafficking Act (FOSTA) regulation. Fearing a potential legal breach, it would be favourable for Tumblr to just ban nudity altogether. On the surface, Tumblr is the enforcer. But there are more factors at play.

The EU Terrorist Content Regulation represents a similar tug-of-war between platforms and governments, each factor attempting to exert its power over the other. One side will pull, the other may fight back, but eventually acquiesce—until we are no longer sure which side to lodge the blame to. The loser is the average platform user, the person on the receiving end of this new brand of content moderation. Much like Tumblr’s nudity ban, the Terrorist Content Regulation is content moderation for our modern digital period: vacillating, often biased, and evading blame.

The Terrorist Content Regulation is another example of how our enlivened expectations of platforms manifest in practice. We feel that platforms are failing us, their fingers itching to smash the censor button on nudity, but unwilling to remove content that spreads hate or incites violence. What it really proves is that platforms and governments aren’t so much failing to do their jobs as they are scrambling to figure out what those jobs are in the first place.

So what comes next? Trilateral meetings between the Commission, the Council, and the Parliament are expected to commence in October 2019. Apart from that, not much can be gathered. What can be gleaned from the proposal thus far is that the line between platform guidelines and government regulation is blurred. The identities of those in charge of the internet are blurring, too. Content moderation today occurs in the back-and-forth between platforms and governments; a frenetic movement that renders platform users passive. Sometimes, to end a of tug-of-war, you need to cut the rope.