The European Parliament is amending the legislative proposal to reform the EU Audiovisual Media Services (AVMS) Directive. The Civil Liberties, Justice, and Home Affairs Committee (LIBE) of the European Parliament adopted earlier this month its Opinion on the review, which will be taken into account by the Culture and Education Committee (CULT) leading this debate in Parliament. We welcome LIBE’s Opinion, which, contrary to CULT’s draft Report, amongst other positive elements, highlights the importance of protecting freedom of expression and information in the context of a fast-evolving media landscape, maintaining the liability protections in the E-Commerce Directive, as well as ensuring prior judicial authorisation when determining the illegality of content, elements which we will continue to strongly advocate for in this debate.
The proposal by the Commission poses serious challenges to free expression by requiring internet companies to police and monitor their platforms for content that may violate restrictions on various types of speech, including ‘hate speech’ and ‘glorification of terrorism’. CULT’s draft Opinion makes matters worse by seeking to place an ex ante obligation in amendment 32 on all types of ‘video-sharing platforms’ to prevent their users from being exposed to potentially harmful or undesirable content. This would in other words create a general monitoring obligation for video-sharing websites to filter everything uploaded by their users. On this point, the LIBE Opinion in amendment 20 reiterates the importance of preserving the balanced safeguards established in Article 15 of the E-Commerce Directive for dealing with illegal content online, as well as the European Court of Justice judgements in cases C-360/10 and C-70/10 that clearly state that if imposed by law, such filtering would violate the EU Charter of Fundamental Rights.
On hate speech and protection of minors, CULT’s proposal to let EU Member States impose stricter obligations and additional restrictions on video-sharing platforms, if they so wish, is ill-advised. It would likely lead to unharmonised obligations and restrictions across borders. In this respect, LIBE amends recital 30 in its Opinion to add that ‘Member States should ensure that any measure taken, for the purposes of this Directive, to restrict the online distribution, or otherwise making available, of illegal content to the public is in line with the Charter of Fundamental Rights, is limited to what is necessary and proportionate and is taken on the basis of a prior judicial authorisation’. It is indeed crucial that judges and courts be the ones to determine when content violates the law. Judicial oversight and transparency requirements should particularly be embedded in any measure of this sort that risks being too restrictive on citizens freedom of expression on contentious political and social issues.
LIBE’s Opinion comes as a breath of fresh air amid the current trend running through several parts of the Digital Single Market Strategy (DSM), including its Copyright proposal, to responsibilize companies to determine when content violates the law. We’ll continue to engage in discussions with the CULT Committee to support LIBE’s recommendations in its final Report.