[New article] Addressing online terrorist content through the ‘grammar’ of human rights law

In a new article for  the European Journal of Human Rights, Tarik Gherbaoui (Asser Institute) and Martin Scheinin (University of Oxford), investigate the dual challenge to human rights law posed by the proliferation of online terrorist content and by recent legislation to crack down on such content. The authors explore whether human rights law can articulate and address this dual challenge by properly using the ‘grammar’ of human rights law, i.e. its fundamental concepts, principles, and doctrines.

The European Union (EU) adopted Regulation (EU) 2021/784 in 2021, making hosting service providers responsible for preventing the spread of terrorist content online. If left unaddressed, online terrorist content poses real challenges to human rights law, in particular in the context of states’ positive obligations to respect the right to life by protecting individuals from terrorist attacks. However, according to Gherbaoui and Scheinin, the new European rules have adverse human rights repercussions across Europe, in particular on the freedom of expression.

Far-reaching powers
Under the new European rules, ‘competent authorities’ at the national level have been granted far-reaching powers, such as the power to order hosting service providers to remove allegedly terrorist content within one hour. More importantly, they have the power to subject hosting service providers that are declared to be ‘exposed to terrorist content’ to adopt measures that risk policing online debate in pre-emptive fashion. This new legislation is globally unprecedented because it creates a transnational legal regime as removal orders issued by one EU member state have immediate extraterritorial effect in foreign states.

‘Brussels effect’
The fact that the new European rules apply to all hosting service providers offering services in the vast market of the European Union, also means that the rules are likely to have a global impact. The authors argue that European standards on online terrorist content could indeed become de facto global standards, which author Anu Bradford has aptly called the ‘Brussels Effect’. The European Union risks setting an unhelpful blueprint for states far beyond the EU.

Defining terrorism in (international) law is notoriously controversial. The EU has defined online terrorist content by referring to the definition of terrorism enshrined in the 2017 EU Directive on combating terrorism. This definition is based on tangible physical acts which cannot easily be elevated to the virtual world of online terrorist content. Moreover, the EU definition of terrorism is inconsistent with legal certainty as its extraordinarily widely defined terrorist aims risk bringing acts not commonly regarded as terrorism within its scope.

‘Paper tiger’
The authors disagree with the idea that there is a gap in international human rights law because of the digital age. They use an interpretative approach to argue that the existing principles, concepts, and doctrines of the international human rights regime can adapt to address digital challenges. They conclude that while the removal order regime might well turn out to be a ‘paper tiger’. However, the ‘specific’ measures imposed on platforms that are declared to be exposed to terrorist content have already come at the detriment of the freedom of expression, and the freedom to receive and impart ideas regardless of frontiers, as was promised in the Universal Declaration of Human Rights. 

Read the full article.

About Tarik Gherbaoui
Dr Tarik Gherbaoui is a researcher in international law at the T.M.C. Asser Instituut where he contributes to several projects in the context of the Global Counterterrorism Forum (GCTF). Tarik is part of the research strand ‘In the public interest: accountability of the state and the prosecution of crimes’, focusing on international and European efforts to counter terrorism, including in the digital realm. His doctoral research, under the supervision of Professor Martin Scheinin, assessed the consistency of international and domestic legal responses to foreign fighters with the rule of law and human rights.