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EU to remove some available indicators of Jihadist sympathy

Chris Hamblin, Editor, London, 13 June 2016

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The European Union is about to produce a 'code of conduct' to make IT companies eradicate pro-jihadist messages online, thereby removing one of the most important means that compliance officers have of detecting 'foreign terrorist fighters' on their books.

Compliance officers and financial crime officers at banks find it notoriously difficult to weed out FTFs by the tiny transactions they use to fund the illegal parts of their otherwise blameless lives. A new initiative from the European Union is about to close off the recourse that they have to social media sites for clues about their customers' opinions.

The European Commission, the unelected body that writes more than three-quarters of all laws that apply in EU countries, has signed Facebook, Microsoft, Twitter and YouTube up to its "code of conduct on countering illegal hate speech online."

Starting with a paragraph that boasts ironically about the signatories' "collective responsibility and pride in promoting and facilitating freedom of expression," its statement claims that the companies (not the EU itself, implausibly) have 'taken the lead' against the spread of so-called hate speech online. It does not mention the words 'censor' or 'censorship' once.

Not a law by any other name

The three-page edict mentions the phrase "illegal hate speech" 11 times but does not mention any laws that make such speech illegal, save for a so-called 'framework decision' that the EU itself made in 2008. EU countries could ignore 'decisions' of this kind, now abolished by the Lisbon Treaty, if they so chose. They were only subject to the jurisdiction of the European Court of Justice when countries wanted to invoke them and the European Commission was not empowered to take any country to court for failing to transpose one into domestic law.

Article 1 of the 'framework decision,' which is the only clue the EU gives its readers about the so-called 'illegality' of the form of speech it wants to suppress, calls on EU countries to punish anyone who publicly backs violence or hatred towards people defined by reference to religion, among other things, or who disseminates tracts, pictures or other material in support of that. Article 1(c) even proposes to make it a crime to condone crimes against religious and other groups "in a manner likely to incite to violence or hatred against [sic] such a member of such a group."

This last part seems to contradict the European Court of Human Rights, which stated in the Handyside case (1976) that freedom of expression “is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” The definition of hate speech, moreover, as something that is likely to incite hatred seems both circular and all-embracing.

How the censorhip is to work

Anyone who suspects that this is a means by which government departments can ring up Internet companies and tell them to delete material that they dislike would be right. The paper looks forward to member-states, and in particular their law enforcement agencies, recognising and notifying the companies of 'hate speech' online. The companies must evolve clear processes to 'review' most of these orders (which the paper calls 'notifications' throughout) within 24 hours of receiving them, the better to obey them. No order should be too vague or unsubstantiated. Each company must have a dedicated team of reviewers and should educate its users about the types of content that it is banning, perferably using government orders as an illustration.

Offline speech ripe for banning also

The gagging of newspapers and, indeed, of people who like chatting over the back fence, is not far off. The paper goes on to make a chilling declaration: "In order to prevent the spread of illegal hate speech, it is essential to ensure that relevant national laws transposing the Council Framework Decision 2008/913/JHA are fully enforced by member-states in the online as well as the in the offline environment."

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