Online content regulation in Europe: a paradigm for the future #1

Lawmakers in the European Union are today focused on regulating online content, and compelling online services to make greater efforts to reduce the illegal and harmful activity on their services. As we’ve blogged previously, many of the present EU initiatives – while well-intentioned – are falling far short of what is required in this space, and pose real threats to users rights online and the decentralised open internet. Ahead of the May 2019 elections, we’ll be taking a close look at the current state of content regulation in the EU, and advancing a vision for a more sustainable paradigm that adequately addresses lawmakers’ concerns within a rights- and ecosystem-protective framework.

Concerns about illegal and harmful content online, and the role of online services in tackling it, is a policy issue that is driving the day in jurisdictions around the world. Whether it’s in India, the United States, or the European Union itself, lawmakers are grappling with what is ultimately a really hard problem – removing ‘bad’ content at scale without impacting ‘good’ content, and in ways that work for different types of internet services and that don’t radically change the open character of the internet. Regrettably, despite the fact that many great minds in government, academia, and civil society are working on this hard problem, online content regulation remains stuck in a paradigm that undermines users’ rights and the health of the internet ecosystem, without really improving users’ internet experience.

More specifically, the policy approaches of today – epitomised in Europe by the proposed EU Terrorist Content regulation and the EU Copyright Reform directive – are characterised by three features that, together, fail to mitigate effectively the harms of bad content, while also failing to protect the good:

  • Flawed metrics: The EU’s approach to content regulation today frames ‘success’ in terms of the speed and quantity of content removal. As we will see later in this series, this quantitative framing undermines proportionality and due process, and is unfitting for an internet defined by user-uploaded content.
  • The lack of user safeguards: Under existing content control paradigms, online service providers are forced to play the role of judge and jury, and terms of service (ToS) effectively function as a law unto themselves. As regulation becomes ‘privatised’ in this way, users have little access to the redress and oversight that one is entitled to when fundamental rights are restricted.
  • The one-size-fits-all approach: The internet is characterised by a rich diversity of service providers and use-cases. Yet at the same time, today’s online content control paradigm functions as if there is only one type of online service – namely, large, multinational social media companies. Forcing all online services to march to the compliance beat of a handful of powerful and well-resourced companies has the effect of undermining competition and internet openness.

In that context, it is clear that the present model is not fit-for purpose, and there is an urgent need to rethink how we do online content regulation in Europe. At the same time, the fact that online content regulation at scale is a hard problem is not an excuse to do nothing. As we’ve highlighted before, illegal content is symptomatic of an unhealthy internet ecosystem, and addressing it is something that we care deeply about. To that end, we recently adopted an addendum to our Manifesto, in which we affirmed our commitment to an internet that promotes civil discourse, human dignity, and individual expression. The issue is also at the heart of our recently published Internet Health Report, through its dedicated section on digital inclusion.

For these reasons, we’re focused on shaping a more progressive and sustainable discourse around online content regulation in the EU. In that endeavour there’s no time like the present: 2019 will see critical developments in EU policy initiatives around illegal and harmful content online (think terrorism, copyright, disinformation), and the new European Commission is expected to review the rules around intermediary liability in Europe – the cornerstone of online enforcement and compliance today.

In the coming weeks, we’ll be using this blog to unpack the key considerations of online content regulation, and slowly build out a vision for what a better framework could look like. We hope you’ll join us on the journey.