On 8 November 2023, ECNL, as part of a coalition of six organisations – La Quadrature du Net (LQDN), Access Now, ARTICLE 19, European Digital Rights (EDRi) and Wikimedia France – joined a complaint before the French supreme administrative court, the Conseil d’État, against the French decree implementing the EU Regulation on addressing the dissemination of terrorist content online (also known as “TERREG”) which entered into force in June 2022.
We are asking the Conseil d’État to request a preliminary ruling from the Court of Justice of the European Union on whether the regulation complies with fundamental rights protected by EU law.
Under TERREG, law enforcement authorities in any EU country can order a website or an app to block within one hour any content published by their users and alleged to be of terrorist nature. These services can also be forced to implement “specific measures” to prevent the publication of terrorist content. The choice of these “specific measures” remains at the discretion of the companies. They may include, for example, automated upload filters, which screen all content before publication. Such automated systems are unable to take into account the context of the publication and are notoriously prone to errors, which results in the censorship of legitimate speech. Misclassifying content as terrorist often disproportionately impacts civil society organisations, human rights defenders or climate activists, as well as members of marginalised groups, especially Muslim or Arab Internet users.
Our coalition, and many others, have denounced the risks of serious fundamental rights violations entailed by the TERREG since the European Commission published the proposal 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 a few of them are currently able to meet the obligations it imposes.
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.