Negociació d'un nou marc normatiu per a les plataformes audiovisuals d'ús compartit: propostes per a un model de governança responsable de la llibertat d'expressió en línia
| Autor | Krisztina Rozgonyi |
| Cargo | Assistant professor and postdoctoral researcher at the University of Vienna, specialised in policy-making, media, telecomunications and IPR law and regulation |
| Páginas | 83-98 |
NEGOTIATING NEW AUDIOVISUAL RULES FOR VIDEO SHARING PLATFORMS:
PROPOSALS FOR A RESPONSIVE GOVERNANCE MODEL OF SPEECH ONLINE
Krisztina Rozgonyi*
Abstract
There is a unique upcoming policy momentum in European audiovisual media policy. This is the implementation of the
new rules on Video Sharing Platform Providers (VSPs) with regard to the protection of minors against harmful content
and of all users against incitement to violence and hatred. However, the application of the Country-of-Origin principle,
the basic tenet of the Audiovisual Media Services Directive and audiovisual media regulation across the European
Union, will inherently interfere with the stated policy aim of levelling the playing eld vis-à-vis VSPs. This paper
assesses the potential consequences of such regulatory dysfunctions in the context of hate speech regulation eective
throughout Europe. It argues that Responsive Governance Model-type co-regulation could address and mitigate the loss
of normative diversity, and outlines a blueprint for this. At stake is the (further) fragmentation of the internet. Hence, it
is important and urgent to nd adequate regulatory responses to ensure pluralistic and diverse media markets in Europe.
Key words: accountability; digital platforms; AVMSD; hate speech; protection of minors; national media regulators.
NEGOCIACIÓ D’UN NOU MARC NORMATIU PER A LES PLATAFORMES
AUDIOVISUALS D’ÚS COMPARTIT: PROPOSTES PER A UN MODEL DE
GOVERNANÇA RESPONSABLE DE LA LLIBERTAT D’EXPRESSIÓ EN LÍNIA
Resum
Hi ha un impuls polític inèdit i progressiu en la política europea de mitjans audiovisuals. Es tracta de la implementació
de noves regles sobre els proveïdors de plataformes audiovisuals de compartició de vídeos (VSP) pel que fa a la
protecció dels menors contra contingut nociu i de tota la ciutadania contra la incitació a la violència i l’odi. Tanmateix,
l’aplicació del principi del país d’origen, el principi bàsic de la Directiva de serveis de comunicació audiovisual
i la regulació de mitjans audiovisuals a tota la Unió Europea, interferirà intrínsecament amb l’objectiu polític
declarat d’equilibrar el terreny de joc davant les plataformes VSP. Aquest article avalua les conseqüències potencials
d’aquestes disfuncions normatives en el context de la regulació ecaç dels discursos de l’odi a tot Europa. Argumenta
que la coregulació del model de governança responsable podria abordar i mitigar la pèrdua de diversitat normativa i
esbossa un pla per aconseguir-ho. Està en joc la (major) fragmentació d’Internet. Per tant, és important i urgent trobar
respostes normatives adequades a Europa per garantir mercats audiovisuals pluralistes i diversos.
Paraules clau: rendició de comptes; plataformes digitals; AVMSD; discurs de l’odi; protecció de menors; reguladors
nacionals de mitjans de comunicació.
* Krisztina Rozgonyi, assistant professor and postdoctoral researcher at the University of Vienna, specialised in policy-making,
media, telecomunications and IPR law and regulation. Department of Communication, Faculty of Social Sciences. Währinger Straße
29 (R. 7.31), 1090 Vienna (Austria). krisztina.rozgonyi@univie.ac.at, @RozgonyiKriszta.
Article received 30.09.2020. Blind review: 01.11.2020 and 10.11.2020. Final version accepted: 20.11.2020.
Recommended citation: Rozgonyi, Krisztina. (2020). Negotiating new audiovisual rules for Video Sharing Platforms: proposals
for a Responsive Governance Model of speech online. Revista Catalana de Dret Públic, 61, 83-98. https://doi.org/10.2436/rcdp.
i61.2020.3537.
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Revista Catalana de Dret Públic, Issue 61, 2020 84
Summary
The state of aairs in the EU: transposing the Amended AVMSD
At a crossroad: the policy objectives of the Amended AVMSD and the Country-of-Origin principle
Case in point: regulating hate speech in audiovisual media services across Europe
Ireland as the champion of the Country-of-Origin principle vis-a-vis VSPs
Looking forward: A Responsive Governing Model to regulation
I The underlying principles of regulation and applicable standards
II Outlining the Responsive Governing Model
Conclusion
References
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Despite the many early warnings (Bárd & Bayer, 2016), proposed alternatives (van der Noll et al., 2015;
Flew, 2018) and severe criticisms (Barata Mir, 2018), the biggest audiovisual media regulatory experiment in
the European Union (EU) is under way. Amendments to the Audiovisual Media Services Directive (Amended
AVMSD)1 extended the scope of audiovisual media regulation to Video Sharing Platform Providers (VSPs)
and to some extent to Social Media Service Providers (SMSPs),2 which needed to be transposed into 283
national laws by 19 September 2020 with a coordinated approach. Within this revision, European policy-
makers reacted to the increasing penetration of powerful global online platforms and retreated from border-
breaking liberalisation towards more protective regulation (Broughton Micova, 2019).
The new rules were passed after an incremental growth in political pressure calling for regulatory intervention
at EU level with regard to the liability of online intermediaries – including VSPs – for copyright infringements4
and preventing the dissemination of speech-related terrorist content online,5 in parallel with an overall shift
in the policy discourse from intermediary liability to intermediary responsibility (Frosio & Husovec, 2020).
In this climate, European policy-makers were eager to see “results” in eliminating “harm online” and adopted
the amendments to the AVMSD. This move, back in 2018, seemed courageous to many; today critical voices
are arguing for stricter regulations against the abuse of opinion power by social media platforms as political
actors in their own right (Helberger, 2020).
The Amended AVMSD encompasses a broad range of delicate content regulation matters involving VSPs,
including the protection of minors against harmful content and of users in general from incitement to violence
or hatred. However, it is far from clear now how the combined application of these requirements and the
Country-of-Origin principle would ensure that Europe’s historical and cultural diversity, as embodied in
national media laws and regulations, was duly respected and reected in audiovisual media regulation vis-
à-vis digital platforms. Against this background, this paper investigates the impact of regulating VSPs for
Europe as a whole and proposes a potential regulatory model that is responsive to national legal dierences,
thus moving on from the dichotomy of “to regulate or not to regulate”. The focus lies in conceptualising the
necessary involvement of National Regulatory Authorities (NRAs) in the EU who are to provide regulatory
oversight and represent public scrutiny in the scheme (Kuklis, 2018).
The state of aairs in the EU: transposing the Amended AVMSD
At the time of writing this paper, the implementation of the Amended AVMSD is under way across the EU
and the adoption of nal national legal acts6 is close. According to reports, only four countries nished the
process on time7 despite the Europ ean Commission’s eorts to bring about a harmonised transposition8. In
Denmark, the new rules have been in force since 1 July 2020, subsequently implemented in 12 ministerial
orders as well (in force since 15 September)9. The UK transposed the Amended AVMSD despite Brexit,
1 Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU
on the coordination of certain provisions laid down by law, regulation or administrative action in the Member States concerning the
provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities PE/33/2018/
REV/1 OJ L 303, 28.11.2018, p. 69–92
2 “…a social media service should be covered if the provision of programmes and user-generated videos constitutes an essential
functionality of that service.” Preamble (4) and (5) of the Amended AVMSD.
3 Despite Brexit, the UK transposed the Amended AVMSD.
4 Copyright in the Digital Single Market - Amendments adopted by the European Parliament on 12 September 2018 on the proposal
for a directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM(2016)0593 – C8-
0383/2016 – 2016/0280(COD)).
5 See the “Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on preventing the
dissemination of terrorist content online” in 2018 (COM/2018/640 nal).
6 The deadline for transposition expired on 19 September 2020 but was delayed due to the COVID-19 crisis affecting the
process.
7 See the transposition database carried out by the European Audiovisual Observatory; available at https://www.obs.coe.int/en/web/
observatoire/avmsd-tracking; accessed on 18 November 2020.
8 See the “Communication from the Commission Guidelines on the practical application of the essential functionality criterion of
the denition of a ‘video-sharing platform service’ under the Audiovisual Media Services Directive 2020/C 223/02; C/2020/4322”;
OJ C 223, 7.7.2020, p. 3–9.
9 See the Act amending the Radio and Television Act and the Film Act (Lov om ændring af lov om radio- og fjernsynsvirksomhed
og lov om lm); available at https://www.ft.dk/ripdf/samling/20191/lovforslag/l108/20191_l108_som_vedtaget.pdf; accessed on 18
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though the UK’s transposition process is to be interpreted within the context of broader policy considerations
about online harm10. Germany agreed to implement legislation at both state and federal level, with extensive
regulation of VSPs with regard to transparency requirements on freedom from discrimination in the provision
of access to media content11. Lately, Sweden has also adopted the necessary amendments to the Radio and
Television Act and went beyond minimum harmonisation with the introduction of stricter rules on audiovisual
commercial communications (advertising, product placement and sponsorship) for VSPs.12
However, the EU-wide transposition process is uneven and, in many cases, ran into national policy
considerations and legislative intervention concerning the regulation of online intermediaries beyond
audiovisual media content. The rst attempts at the re-nationalisation of speech regulation were made in
Germany back in 201713 and updates were proposed recently,14 holding social media platforms responsible
for combating online speech deemed illegal under domestic law. Next, France adopted laws in 2018 to combat
dis(mis)information online15 and then in 2020 combating hate speech online16 (although these were recently
declared unconstitutional17). Austria has proposed new legislation in 2020 for the protection of users against
hatred on the internet.18 In all cases Member States introduced statutory requirements on intermediaries by
(better) enforcing existing criminal code norms on hate speech or imposing new obligations on eliminating
the spread of “fake news”. This trend was also followed by many other countries beyond the boundaries of
the EU with a global eect of standardless policies and inconsistent enforcement (Kaye, 2019).
The tensions between Member States’ aspirations for re-nationalised speech regulation and the need to
harmonise legislation according to the Amended AVMSD resulted in a rather conictive and somewhat
chaotic situation. France is a case in point, since the government’s approach to regulating social networks
challenged the tenets of the AVMSD and proposed the replacement of the Country-of-Origin principle by the
“Country-of-Destination” approach.19 The conceptual, even political, arguments went well beyond the usual
controversies between national versus EU policy aims and it is foreseeable that these battles will continue.
Hence, it is of the utmost importance to know which regulatory models governing VSPs will prevail and
whether they will mitigate or further aggravate tensions.
At a crossroad: the policy objectives of the Amended AVMSD and the Country-of-Origin
principle
The Amended AVMSD focused on the protection of minors against harmful content online, combating hate
speech and public provocation to commit terrorist oences on the internet. The amended rules extended the
November 2020.
10 It was proposed that VSPs would be overseen by the UK NRA (Ofcom) along with the Advertising Standards Authority as co-
regulator in charge of advertising. See the UK’s Online Harms White Paper proposing regulation of online platforms in April 2019;
available at https://www.gov.uk/government/consultations/online-harms-white-paper; accessed on 10 September 2020.
11 The revision of the Interstate Media Treaty (Medienstaatsvertrag), the relevant legal instrument to transpose the Amended
AVMSD to national law, started early in 2019 and the draft new rules were published in December 2019. See the “Staatsvertrag
zur Modernisierung der Medienordnung in Deutschland – Entwurf –Beschlussfassung der Konferenz der Regierungschennen und
Regierungschefs der Länder vom 5. Dezember 2019”; available at https://www.rlp.de/leadmin/rlp-stk/pdf-Dateien/Medienpolitik/
ModStV_MStV_und_JMStV_2019-12-05_MPK.pdf; accessed on 11 August 2020.
12 See the Draft amendments to the Radio and Television Act (2010:696); available at https://www.regeringen.se/4a6796/
contentassets/60afe9a915c741a0a3cb6009bc61de03/en-moderniserad-radio--och-tv-lag-.pdf; accessed on 18 November 2020.
13 Germany adopted in 2017 the Network Enforcement Act (Netzwerkdurchsetzunggesetz, NetzDG) on setting reporting and
removal requirements on social networks with regards to unlawful content.
14 See “Entwurf eines Gesetzes zur Änderung des Netzwerkdurchsetzungsgesetzes (NetzDG) (BT-Drs. 19/18792)”; available at
https://dip21.bundestag.de/dip21/btd/19/177/1917741.pdf; accessed on 19 November 2020.
15 France passed a new law (LOI n° 2018-1202 du 22 décembre 2018 relative à la lutte contre la manipulation de l’information) at
the end of 2018 on the removal of “fake news” during election campaigns.
16 See the French “Avia law” Loi n° 2020-766 du 24 juin 2020 visant à lutter contre les contenus haineux sur internet.
17 See the decision of the French constitutional court Décision n° 2020-801 DC du 18 juin 2020.
18 See the draft “Hass-im-Netz-Bekämpfungs-Gesetz – HiNBG” against hate speech online and the draft “Bundesgesetz über
Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen” on measures to protect users on communications platforms;
both draft laws should be enacted in December 2020.
19 See the French government’s proposal in May 2019 for the regulation of social networks; available at https://www.
numerique.gouv.fr/uploads/Regulation-of-social-networks_Mission-report_ENG.pdf; accessed on 10 September 2020.
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scope of audiovisual regulation to VSPs and SMSPs and introduced a new statutory enforcement mechanism
both at Member State and EU level (Table 1).
Table 1: New rules applicable to VSPs and SMPSs as enshrined in the Amended AVMSD.
Addressees of
regulation
Video-sharing Service Providers - VSPs (Art. 1. (da)) and Social Media Service Providers
SMSPs (Preamble 4, 5)
Objects of
regulation
1. incitement to hatred (Art. 28b (1) b and c);
2. protection of minors (Art. 28b (1) a);
3. public provocation to commit a terrorist oence (Art. 28b (1) c);
4. non-appropriate audiovisual commercial communications (Art. 28b (2)).
Regulatory
requirements
a. amendments to service terms and conditions with regard to 1-2-3 (Art. 28b (3 a));
b. amendments to service terms and conditions with regard to 4 (Art. 28b (3 b));
c. provision of user functionality with regard to 4 (Art. 28b (3 c));
d. provision of user reporting and agging with regard to 1-2-3 (Art. 28b (3 d)) as well as due
explanation (Art. 28b (3 e));
e. provision of age verication system to users with regard to 2 (Art. 28b (3 f));
f. provision of a content rating system to users with regard to 1-2-3 (Art. 28b (3 g));
g. provision of a parental control system to users with regard to 2 (Art. 28b (3 h));
h. users’ complaint handling and resolution with regard to a.-g. (Art. 28b (3 i));
i. users’ awareness-raising with regard to a.-h. (Art. 28b (3 j)).
Regulatory
process
i. National level: statutory co-regulation with the involvement of the main stakeholders in the
Member States and national regulatory authority or body - NRAs (Art. 4a (1)), based on
national level Codes of Conduct (Art. 4a (1a));
ii. EU level: self-regulation with the involvement of the main stakeholders at Union level,
based on EU-level Codes of Conduct (Art. 4a (2)).
Regulatory
supervision
i. Up-to-date records of VSPs at the national level (Preamble 7);
ii. Assessment of the appropriateness of measures 1-2-3-4 taken by VSPs by NRAs (Art. 28b
(5)) based on Country-of-Origin principle (Art. 28a (1-4));
iii. Out-of-court redress mechanisms for the settlement of disputes between users and VSPs
(Art. 28b (7));
iv. Court oversight of disputes between users and VSPs (Art. 28b (8)).
According to the new provisions, VSPs and SMSPs will have to comply with a series of obligations in the
regulated areas, eliminate exposure of minors to harm and ensure that users are not exposed to unlawful
content. These duties should be assumed mostly through private control, overseen by a national regulator
and based on robust transparency rules via legislation (Kuklis, 2019). The applicable law to assess the
appropriateness of the measures taken by VSPs and SMPSs will be that of the country of establishment,
according to the Country-of-Origin principle and the NRA mandated accordingly,20 Since the major VSPs
and SMSPs – including Facebook, YouTube and Twitter – were all incorporated in Ireland for their European
operations, the Irish NRA will have to monitor compliance with the regulatory framework.
The Country-of-Origin principle has been one of the pivotal instruments establishing a European pro-
competitive media order since 1989, incorporated in the main EU-specic legal document in the eld of
broadcasting, the Television Without Frontiers Directive. This principle ensured not only the free movement
20 See Article 4a (3) Amended AVMSD.
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of trans-border television signals emerging and competing for European broadcast services but also a
certain level of competition among national regulations and regulators. Moreover, it assured an ascendency
of democratic and socio-cultural objectives across Europe (Michalis, 2014). However, what has been a
profound and decade-long well-functioning regulatory concept for television broadcast-type media services
is facing the reality of VSPs’ operations which are less concerned about local markets or country-specics
but smooth pan-Europe operations and centralised management, scal and regulatory functions. Thus, the
application of the Country-of-Origin principle has a paradoxical consequence in that the most nationally-
sensitive speech matters will be (almost) exclusively dealt with by the Irish authorities (Barata, 2020) and
dened purely according to Irish legal standards and socio-cultural norms. This eect is clearly at odds with
the re-nationalisation trends of speech regulation discussed earlier.
Some Member States, such as France, criticised the ineciency of the principle applied to online intermediaries
and put forward proposals for overruling it and replacing it by the “destination-country” principle, making
VSPs responsible to the Member State where breaches of rules and damage occurred.21 Previously, scholars
also warned about the incompatibility of the principle with sharing media practices, ultimately contributing
to media concentration, while eliminating the EU’s media policy tradition on pluralism (Ibrus & Rohn, 2016)
part of the broader Digital Single Market (DSM. Moreover, the malfunctioning of the Country-of-Origin
principle had resulted in a detrimental outcome in other policy areas, such as data protection. The EU’s
General Data Protection Regulation,22 which was supposed to provide a clear, meaningful EU-wide standard
to enforce the privacy and personal data protection of citizens, failed as a consequence of the application
of the Country-of-Origin principle. In that case, the Irish regulator, the Data Protection Commission of
Ireland, was also in charge of regulatory oversight of most non-EU Big Tech companies, including internet
intermediaries, such as Facebook, Twitter or Google. However, the Irish authority was the “weak link”
in enforcing data protection “for Europe” and failed to provide eective remedies for EU citizens against
breaches of data protection laws by the Big Tech companies.23 As a consequence, the entire EU-US data
transfer scheme (“Privacy Shield”) was invalidated by the Court of Justice of the European Union.24
The preceding failures on applying the Country-of-Origin principle to non-compatible policy contexts should
have alarmed EU policy-makers about the consequences of such shortcomings. Scholars who revisited
the principle also identied the most acute problems and developed pragmatic, limited-potential solutions
for such cases (Wagner, 2014). Yet, this aspect was not salient during the policy debates on the Amended
AVMSD and only a few comments were made about changing the status quo.25 This said, the ongoing
transposition phase exposed the role of Ireland as de facto regulator “for Europe” with regard to audiovisual
media services disseminated across Europe by the VSPs. Against this background, we need to further assess
the foreseeable impact of the new rules. The case of regulating hate speech will be examined with the aim of
locating acute stresses in the regulatory system and identifying potential mitigations.
21 Ibid., 23.
22 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons
with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data
Protection Regulation).
23 See the “Open letter to the European Data Protection Authorities, the European Data Protection Board, the European Commission
and the European Parliament” on 25 May 2020 by Maximilian Schrems on behalf of the European Centre for Digital Rights;
available at https://noyb.eu/sites/default/files/2020-05/Open%20Letter_noyb_GDPR.pdf; accessed on 11 August 2020.
24 See the judgement on 16 July 2020 of the Court of Justice of the EU in Data Protection Commissioner v Facebook Ireland
Limited, Maximillian Schrems (Case C-311/18, “Schrems II”); available at http://curia.europa.eu/juris/document/document.
jsf?text=&docid=228677&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=9745404; accessed on 30
September 2020.
25 “5 Member States and 5 Regulators asked for a move to a dierent approach, whereby providers would have to comply with
some rules (e.g. on the protection of European works) of the countries where they deliver their services”. See synopsis report of the
public consultation on Directive 2010/13/EU on Audiovisual Media Services (AVMSD) - A media framework for the 21st century,
p. 7; available at https://ec.europa.eu/digital-single-market/en/news/report-public-consultation-review-audiovisual-media-services-
directive-avmsd; accessed on 16 September 2020.
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Case in point: regulating hate speech in audiovisual media services across Europe
EU citizens reported various limitations in engaging with public discourses on the internet and specically
on social media because of “(…) hate speech, threats or abuse directed against people active on social media”
whereby “(...) these experiences made them hesitant to engage in online debates” (European Commission,
2016a: 50). The AVMSD and other key legal instruments26 required Member States early on to ensure that
audiovisual media services provided under their jurisdiction do not contain any incitement to hatred or
disseminate it across borders.27 Illegal hate speech was dened according to the EU Fundamental Charter28
and the Council Decision of 200829 as “any form of speech that calls publicly for inciting to violence or
hatred directed against a group of persons or a member of a group dened by reference to sex, race, colour,
religion, descent or national or ethnic origin,30 or the condonement, denial or trivialisation of crimes of
genocide, crimes against humanity and war crimes”.31 (It is to be noted that the EU-wide self-regulatory
instrument on countering illegal hate speech online [European Commission, 2016b] also referred to the
same legal sources.) However, none of the provisions specied any further standards on the merits of such
regulations but left the matter to law enforcement, applying national norms and measures.
The Amended AVMSD extended the scope of these requirements to VSPs, who need to take appropriate
measures to protect the general public from programmes, user-generated videos and audiovisual commercial
communications containing incitement to violence or hatred. The question of whether any uploaded
audiovisual content circulating across Europe is illegal will only be decided according to the law of Ireland.
YouTube users in Sweden or in Malta can only hope that the Irish authorities would do a “good enough job”
and not let them be exposed to cruel or hate-inciting moving images that are hurtful in their context. This
is not a reassuring situation from a policy perspective. It also suggests that the multiple sensitive historical,
cultural and societal divergences across Europe embodied in national hate speech laws, regulations and
corresponding jurisprudence were left unattended when the regulatory concept was designed for the VSPs.
A good illustration of what is at stake is an overview of the dierent substance of illegal hate speech
implemented in the relevant media laws across the EU (Table 2). This comparative analysis exhibits the
variety and diversity of denitions of the roots and forms of hatred.32 The multiplicity of denitions according
to which audiovisual media content would incite hatred explicitly reects Europe’s diverse traumas and
manifold historical vulnerabilities.
26 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce” - ECD).
27 The most relevant provisions in this regard are Article 6 of the AVMSD and Article 3(2) and 3(4)(i) of the ECD. Article 6 of the
AVMSD requires the Member States to ensure that audiovisual media services provided under their jurisdiction do not contain any
incitement to hatred based on race, sex, religion or nationality. Under Article 3(2) and 3(4)(i) of the ECD, Member States may restrict
the provision of cross-border information society services if it is necessary for the ght against incitement to hatred on the grounds
of race, sex, religion or nationality.
28 Charter of Fundamental Rights of the European Union, 2012/C 326/02, OJ C 326, 26.10.2012, p. 391–407.
29 Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and
xenophobia by means of criminal law OJ L 328, 6.12.2008, p. 55–58.
30 See Article 21 of the Charter referring to sex, race, colour, ethnic or social origin, genetic features, language, religion or
belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation; as well
as any discrimination on grounds of nationality.
31 See Article 1 of the Council Framework Decision.
32 The comparative legal research used sources as indicated for the compilation of national transposition measures by the EU, the
EPRA national law compilation, and the unocial translation made at the University of Luxembourg. The “Comparative study on
legislation sanctioning hate speech and discrimination in the member states of the European Union” by NU DISCRIMINARE (2014)
and the European Parliament Study “The European legal framework on hate speech, blasphemy and its interaction with freedom of
expression” by Policy Department C (2015) were also consulted for identication of the relevant legal sources.
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Table 2: Outline of the scope of media regulation on incitement to hatred in the EU.
Scope of media regulation on incitement to
hatred (illegal hate speech)
Frequency of occurrence
Race / Skin colour Most common ground
Gender / Sex / Sexual orientation Most common ground
Religion/Belief Most common ground but with diering
signicance
Disability Common ground
Nationality Most common ground
Ethnicity Common ground
Philosophic view Infrequent
Age Infrequent
Genocide denial (including the Holocaust) Infrequent (but prevalent in criminal laws)
Violence/Brutality Infrequent
Political views Infrequent
Education Infrequent
Family/Marital status Infrequent
Language Infrequent
Property Infrequent
Trade Union membership Infrequent
Social/Birth status Infrequent
Health condition Infrequent
Genetic heritage / Native identity Infrequent
Anti-Semitism and xenophobia Infrequent
Embracement of totalitarian regimes Infrequent
Morals Infrequent
This example also underlines why combating hate speech is a matter of democracy and media pluralism in
Europe and the motives for safeguarding these fundamental values are built on a robust regulatory construct.
NRAs, alongside the judiciary, applied national hate speech norms to audiovisual media services, and they
were equipped with a wide range of applicable sanctions (Council of Europe, 2017). NRAs could set nes
but also order the suspension of the reception of linear media services or prohibit access to non-linear ones
up to six months in cases of manifest, serious and grave violations of the law.33 (Nonetheless, in certain
hypersensitive political situations, conicts over jurisdiction and enforcement occurred.34) Moreover, the
NRAs’ regulatory toolkit was complemented by positive measures aimed at promoting diversity and pluralism
and the creation of an enabling environment for freedom of expression.35 Overall, European NRAs were
dealing with a broad range of hate speech and their intervention options stretched well beyond restrictions on
illegal speech. Within this complex and multifaceted framework there was no easy or straightforward answer
to providing a clear set of criteria applied by the regulatory bodies in hate speech cases (ARTICLE 19, 2018).
Moreover, in the online context, the drawing of the boundaries between illegal hate speech falling under the
scope of the Amended AVMSD and harmful content which is toxic for public discourse would require an
even more reective approach to regulation. Moreover, the realisation of what media pluralism and diversity
33 The legal denitions of the types of violation also varied, referring to “explicit and serious”; “clear, important and serious”; “clear,
serious and agrant” and “gross and repeated”.
34 The best examples were the Lithuanian and Latvian cases against Russian broadcasters in 2015 and later in 2019. The
retransmission of their services was suspended due to incitement to hatred. See the European Commission’s decisions; available at
https://ec.europa.eu/digital-single-market/en/news/latvias-decision-suspend-broadcast-russian-language-channel-rossiya-
rtr-complies-eu-law; accessed on 16 September 2020.
35 According to Article 10 of the European Convention on Human Rights (The Convention for the Protection of Human Rights and
Fundamental Freedoms ETS No.005, Rome, 1950).
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should entail within the dynamic relationship between traditional media, VSPs and users (Helberger, 2018)
will pose new challenges for NRAs. This truly European context is the background to the new regulatory
regime vis-a-vis VSPs which introduced the Country-of-Origin principle and put the burden of responding
to the needs of governing speech regulation on the Irish media regulator.
Ireland as the champion of the Country-of-Origin principle vis-a-vis VSPs
Ireland took on this challenge. In 2019, the Irish government launched a public consultation on the “Regulation
of Harmful Content and the Implementation of the Revised Audiovisual Media Services Directive”, whereby
the Irish NRA, the Broadcasting Authority of Ireland (BAI), proposed the introduction of new statutory
regulation for online videos and harmful online content to be accomplished through the “(…) introduction of
a single, comprehensive regulatory scheme and regulator”.36 The BAI further proposed that the new regulator
should “(…) have regard to the wider objectives of content and services that serve citizens – ensuring Diversity
and Plurality, the promotion of Freedom of Expression, sustaining and enhancing democratic discourse, and
facilitating linguistic and cultural diversity”.37 More importantly, the BAI noted that “(…) most of Europe’s
largest providers of video-sharing platform services, such as YouTube and Facebook, are based in Ireland and
will be regulated in this country for their European activities”, which “(…) should be implemented through
legislation and statutory codes”.38 Based upon the consultation process, the Irish government proposed a
new law to regulate harmful online content.39 The draft Online Safety Media Regulation Bill 2019 followed
the concept of a single regulator and sought the establishment of a new multi-person Media Commission,
including an Online Safety Commissioner, with the dissolution of the BAI. The new Media Commission
should be in charge of implementing audiovisual media regulation towards VSPs and SMSPs for Europe.
The current Irish NRA (the BAI) acknowledged its greater responsibility towards the entirety of Europe40
and admitted that “(…) the new rules in the Directive mean that other Member States may have had their
ability to impose regulatory rules and sanctions on VSP Providers established outside their Member State
weakened”.41 Nevertheless, little mitigation was oered other than “(…) thresholds should apply to the
mediation system given the EU-wide scale of the regulation of VSPs”.42
The new Irish NRA will have to ensure that no audiovisual media content is shared on VSP platforms inciting
hatred anywhere in Europe. But the question remains: who will assess the impact of such content on users
based in Italy, Romania or any country other than Ireland and how will this be done? At this moment, the Irish
draft Bill43 only refers to “(…) harmful online content” which includes “materials which it is a criminal oence
to disseminate under Irish [or Union law]”, including content “(…) containing or comprising incitement to
violence or hatred”, implying, that “(…) the wording of this category would also incorporate any future
changes to criminal law in this area, making it adaptable and futureproof”.44 Nevertheless, this concept
36 See: “BAI publishes submission on the regulation of harmful online content / implementation of new Audiovisual Media Services
Directive” on 24 June 2019; available at https://www.bai.ie/en/bai-publishes-submission-on-regulation-of-harmful-online-
content-implementation-of-new-audiovisual-media-services-directive; accessed on 11 August 2020.
37 Ibid.
38 Ibid.
39 Online Safety Media Regulation Bill 2019 – General Scheme; available at https://www.gov.ie/en/consultation/430d0-
regulation-of-harmful-online-content-and-the-implementation-of-the-revised-audiovisual-media-services-directive
accessed on 8 September 2020.
40 “Ireland is responsible for regulating the video-sharing platform services based in Ireland for the entirety of Europe. Most
of Europe’s largest providers of video-sharing platform services – such as Facebook, Google and Twitter – are based in Ireland.
Ireland’s responsibility under the Directive in respect of video-sharing platform services is, therefore, greater than any other EU
Member State.” - See “BAI publishes submission on the regulation of harmful online content / implementation of new Audiovisual
Media Services Directive” on 24 June 2019, p. 12; available at https://www.bai.ie/en/bai-publishes-submission-on-regulation-
of-harmful-online-content-implementation-of-new-audiovisual-media-services-directive; accessed on 17 September 2020.
41 Ibid., p. 42
42 See “Q. 16 and e. Mediation–Video Sharing Platform Services - Thematic Analysis - Public Consultation on the Regulation of
Harmful Online Content and the Transposition of the Audiovisual”; available at https://www.gov.ie/en/consultation/430d0-regulation-
of-harmful-online-content-and-the-implementation-of-the-revised-audiovisual-media-services-directive; accessed on 8 September
2020.
43 Ibid., 66.
44 Ibid., 66., Part 4 – Online Safety; Head 49A – Categories of harmful online content.
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fails to respond to any misgivings stemming from the pan-EU eect of its application. Despite the warnings
about potential fragmentation of national character,45 no mitigation mechanisms for this dysfunctionality
of the Country-of-Origin principle46 have been proposed yet. In other words, there are absolutely no legal
safeguards incorporated in the legal scheme addressing the deciencies of diering hate speech standards
or any regulatory response to the multiple forms and changing nature of incitement to hatred across Europe.
Looking forward: A Responsive Governing Model to regulation
The previous discussion on the contradictions among EU policy aims and regulatory principles demonstrates
the emerging confusion, and even potential conict, in the implementation of the new rules applicable to
VSPs. Perhaps surprisingly, the derogatory measures, which enabled to some extent the mitigation of such
conicts in the case of linear audiovisual media services, were not extended to VSPs.47 Therefore, European
NRAs are in a situation today whereby the most sensitive area of content regulation was to be restricted to
the norms and standards of the Republic of Ireland and a single NRA, the new Irish Media Commission,
was expected to oversee all major VSPs operating across EU markets and enforce regulations aecting all-
EU users. This situation implies per se the emergence of clashes between legal traditions and historical or
cultural dierences under the new regulatory scheme. Recently, the European Commission announced plans
to harmonise a set of specic, binding and proportionate obligations, specifying the dierent responsibilities
in particular for online platform services to keep users safe from illegal content and protect their fundamental
rights online. The proposed upcoming Digital Services Act package48 should provide for transparency and
greater regulatory oversight of online platforms.49 One of the most prominent problems the proposed new
regulation aims to tackle was the online dissemination of illegal content such as hate speech by laying down
clearer, more stringent, harmonised rules. The legislative package was put to the public during the summer
of 2020 and awaits adoption by the European Commission. Although the new rules would most probably
re-arrange the legal and regulatory scene of online speech governance again in Europe, it will take some
time, and audiovisual content will still remain within the AVMSD regulatory framework. Therefore, it seems
inevitable at this stage that the Irish implementation will reect the conictive outcome of neglecting the
regulatory diversity of Europe and attend to potential mitigation methods. It is arguable that an EU-wide
agreed regulatory scheme could serve as the baseline for future legislation.
The legal basis for this concept would build upon a new mutual enforcement mechanism, a possible solution
to mitigate the dysfunctions of the Country-of-Origin principle (Wagner, 2014). This instrument would
take advantage of the mutual enforcement clause in Article 14(3) of the AVMSD and ensure respect for
certain specied rules in targeted countries beyond those of Ireland. According to this concept, a Responsive
Governing Model will have to address the all-digital and transforming media environment based on a broad
range of shared fundamental features, such as (i) the principles of intervention and applicable standards; (ii)
the outline of the new regulatory regime; and (iii) the organisational and operational aspects thereof. The
following deliberations are to inform the process of an emerging governing model for VSPs.
I The underlying principles of regulation and applicable standards
International and European human rights standards should set the baseline for the Responsive Governing
Model. The content-based regulations introduced by the Amended AVMSD for VSPs touch rst and foremost
upon the right to freedom of expression as foreseen by international50 and more specically European51 and
45 See the “Summary of the virtual workshop on the regulatory framework for online safety, 18 June 2020 - Fragmentation of
regulation across the EU”; available at https://www.gov.ie/en/consultation/430d0-regulation-of-harmful-online-content-and-the-
implementation-of-the-revised-audiovisual-media-services-directive; accessed on 9 September 2020.
46 Ibid., 66., Part 4 – Head 50A – Online safety codes.
47 See Article 3(2) of Directive 2010/13/EU (AVMSD).
48 See the initiative for the “Digital Services Act – deepening the internal market and clarifying responsibilities for digital services”
published on 2 June 2020; available at https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12417-Digital-
Services-Act-deepening-the-Internal-Market-and-clarifying-responsibilities-for-digital-services; accessed on 18 September 2020.
49 Ibid.
50 The International Covenant on Civil and Political Rights (ICCPR) and other major international instruments.
51 The European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights (ECtHR).
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EU52 legal instruments. The central concerns here should focus on the inevitable restrictions to illegal content
online, and safeguard media freedom and pluralism. Hence, the necessary content-based regulations, either
in the form of private control by the VSPs (Kettemann, 2020) or imposed by the NRAs, should be prescribed
by law in a clear and straightforward manner and meet the requirement of legality. Moreover, when VSPs
put in place measures protecting users from various types of harm, they should also enable appropriate
reporting and mediation procedures in disputed cases. These measures should enable users to foresee the
consequences of their actions and ensure legal certainty and transparency, and aord them the necessary
degree of protection. The NRAs’ oversight will have to focus not only on the mere provision of such tools
but take the users’ perspective into account to assess de facto user experience of online safety.53
Furthermore, there is a clear risk of over-restriction and over-removal by the VSPs. To reduce legal exposure
to liability for illegal content VSPs put in place largely automated methods for fast detection of such
content and immediate takedown. The Code of Conduct agreed upon by the major VSPs and the European
Commission back in 201654 in response to illegal hate speech online was a clear incentive to fast removal.
Since then, adherence to the Code of Conduct has led VSPs to assess 90% of agged content within 24 hours,
71% of the content being deemed illegal hate speech and removed. These results were applauded by EU
policymakers but received severe criticism from human rights defenders. Shocking evidence was recently
put forward that VSPs have repeatedly taken down content which evidenced abuse and war crimes without
setting up mechanisms to ensure that the content was preserved, archived and made available to international
criminal investigators (Human Rights Watch, 2020). To mitigate such risks, NRAs should verify that VSPs’
detection and removal procedures are transparent and ensure they are not overly broad or biased. Moreover,
content preservation mechanisms should be put in place.
The applicable hate speech standards will have to go well beyond Irish norms and reect the policy objective
of pluralism. Under the Charter on Fundamental Rights, the EU Member States are to ensure the prevalence
of plurality of opinions and equal chances for voices to be heard.55 These positive obligations should guide
policies in drawing the ne line that excludes illegal hate speech and harmful content. Susan Benesch (2020)
argues that a denition of “dangerous speech” is useful to society in preventing possible violence (Benesch
et al., 2020). Furthermore, a careful, balanced design of hate speech detection and reaction standards should
consider policies on the removal of illegal hate content and “counterspeech” perspectives.
II Outlining the Responsive Governing Model
The new pan-EU regulatory model should be sensitive to the impact and consequences of regulating “for
Europe”. The Amended AVMSD oered a good starting point for responding to this concept. The new rules
envisioned a co-regulatory scheme in line with the Principles for Better Self- and Co-regulation56 to be put
in place while implementing the requirements for VSPs. The foundations are interlinked codes of conduct
on national and EU level which reect broad acceptance by relevant stakeholders and are acknowledged
by the NRA in charge (legitimacy). The codes should be subject to regular, transparent and independent
monitoring and evaluation of the achievements (auditing); and provide for eective enforcement and
proportionate sanctions, including the possibility of state intervention (regulatory backstop).57,58 The specic
nature and terms of such codes were left very exible within the set principles of openness, good faith and
enforceability.59 The gure below shows the main governance components of the anticipated co-regulatory
scheme (Figure 1).
52 The Charter on Fundamental Rights of the EU and the case-law of the European Court of Justice (ECJ).
53 See also Council of Europe Recommendation CM/Rec(2018)2.
54 See the detailed overview on the Code of Conduct mechanism; available at https://ec.europa.eu/info/policies/justice-and-
fundamental-rights/combatting-discrimination/racism-and-xenophobia/eu-code-conduct-countering-illegal-hate-speech-online_en;
accessed on 23 September 2020.
55 Charter of Fundamental Rights of the European Union OJ C 326, 26.10.2012, p. 391–407.
56 See the “Principles for Better Self- and Co-regulation” published by the European Commission; available at https://ec.europa.
eu/digital-single-market/sites/digital-agenda/les/CoP%20-%20Principles%20for%20better%20self-%20and%20co-regulation.
pdf; accessed on 25 September 2020.
57 Article 4a of the Amended AVMSD.
58 Preamble 14 of the Amended AVMSD.
59 Preamble 12 of the Amended AVMSD.
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Figure 1. The co-regulatory scheme of the Responsive Governance Model.
EU-wide Code(s) of Conduct
No superiority
(based on the
principles of
subsidiarity and
proportionality)
VSPs and
SMSPs
European
representatives
Other industry
representatives
European
stakeholders
European
Commission ERGA
National-level Code(s) of Conduct
VSPs and SMSPs national
representatives National stakeholders NRA
Judicial review (national) of individual cases
There are several concerns at the moment about what this concept could contribute to the meaningful
regulation of VSPs. Since there are no self-regulatory or co-regulatory systems in place now but rather “solo”-
regulations (Milosavljević & Micova, 2016) by private control, the rst dilemma was whether VSPs would
ultimately adhere to a co-regulatory mechanism at all. The self-regulation currently in place is conceptually
awed as to independent content governance and has made it impossible for this approach to act as a proxy
for statutory regulation (Spielkamp, 2018). Arguably, the most vulnerable points in the co-regulatory scheme
will concern who would be making the rules contained in the various codes and by what procedure (Kuklis,
2020).
Having considered these aspects and the idea of an imagined Responsive Governance Model, we could outline
a potential blueprint which addresses the main issues, such as the (a) code(s) of conduct; (b) monitoring; (c)
enforcement mechanisms; and (d) organisational and operational aspects.
a. The form of the Code(s) of Conduct
First, the procedure of adopting and amending the code(s) has to be regulated with special attention to
stakeholder management both at national and EU level. The process has to provide for inclusiveness
and openness, set prerequisites of representation and oer full transparency in response to stakeholders’
consultations. The relationship between EU- and national-level codes of conduct has to be stipulated clearly
and concisely.
The instrument to mitigate the detrimental eects of the Country-of-Origin principle will need to be
incorporated in EU- and the national-level statutory codes of conduct. These rules should ensure that illegal
content is assumed and moderated by the VSPs according to the dierent national legal standards applicable
to such content beyond those in Ireland. The “origins” of illegal hate speech have to be considered along with
language and other contextual factors. There should be a clear distinction between illegal content subject to
the co-regulatory mechanism and harmful content subject to private control. Meanwhile, the handling of
users’ complaints and appeals should be guided by the utmost transparency and be subject to strict scrutiny
by the NRAs, focusing on the accessibility of those mechanisms to users. Certain “duties of explanation”
towards users should be incorporated into the codes. The complaint procedures’ suitability should be assessed
with due regard to EU-wide users’ legitimate needs regarding language, media literacy and other dierences.
b. Monitoring
There is a broad consensus among policy scholars (Bunting, 2018) and the Irish NRA that regulatory
oversight should be based on statutory procedural standards and that “the regulator should principally work
at a ‘macro’ level”,60 whereby “the appropriate measures to protect minors and the general public should
relate to the organisation of the content and not to the content as such”.61 Accordingly, scrutiny has to focus
on the practices that VSPs employ to identify, assess and address illegal and harmful content (Ofcom, 2018).
60 See the Irish NRA’s (BAI’s) submission: Ibid. at 35., p.34.
61 Preamble 48 Amended AVMSD.
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The Responsive Governance Model resides with the EU-wide cooperation of regulators within established
networks such as the European Regulators Group for Audiovisual Media Services, also extending to the
European Platform of Regulatory Authorities. The Digital European Toolkit laid down the contours for the
operational realisation of such cooperation.62 However, the EU-wide approach to the macro-level regulatory
supervision mechanism also needs to attend to national dierences. Hence, monitoring “for Europe” would
necessitate the establishment and maintenance of national registers of VSPs and SMSPs integrated in an
EU-level centralised database. Furthermore, a single online complaint submission contact point, directly
available to all EU citizens, should be launched by the Irish NRA and channelled towards other EU regulators.
Monitoring reports and regular evaluations of the implementation of the code(s) of conduct have to extend
across Europe. There is a need for complex harm assessments and reection on the societal and policy
implications of dierent national and cultural characteristics. Such assessments should be open for EU-wide
public debate.
c. Enforcement
The Responsive nature of the Governance Model should entail adaptation and reexivity by design to the
pace of change in VSPs’ services and operations. The notion of cooperative responsibility, which assesses
the inuence and responsibility of other stakeholders regarding VSPs, and the platforms’ architecture, which
channels their inuence, should be incorporated in an iterative regulatory process (Drunen, 2020). To test
the resilience of such concepts, regulatory sandboxes should be adapted to the policy aims of the Amended
AVMSD and put in place in distinct local contexts and socio-cultural settings. Lessons should be learned
from proven methods in similar settings and other sectors with comparable experiences (Financial Conduct
Authority, 2017). Moreover, established cooperative regulatory models involving active self- and user-
ratings with a proven track record63 should be incorporated.
In cases of non-compliance with the statutory code(s) of conduct, law enforcement should follow the
principle of proportionality and assess impact throughout the EU. Regulatory backstop mechanisms for
users’ complaints should be made available across Europe. The Irish NRA will have to optimise alternative
dispute settlement procedures (including mediation and conciliation) considering the variety of usage
patterns within dierent linguistic or cultural settings. Regulatory oversight should attend to the accessibility
and aordability of such procedures for dierent user segments across Europe.64
d. Organisational and operational aspects
The new era of VSP regulation will have to see a new generation of regulatory capacity which is the prerequisite
to the functioning of the Responsive Governance Model. Novel skills of data protection specialists and
critical understanding of the human dimensions of online participation will be essential when NRAs are
recruiting (Rozgonyi, 2018). Hence, NRAs will have to invest heavily in new expertise to understand platform
economics (Mansell & Steinmueller, 2020). These capacities should lead NRAs to transform and generally
abandon command&control processes and monolithic institutional setups. Regulation needs to become an
inherently interactive and dynamic exercise with an ongoing reection on the social-political-economic
impact of r intervention. Participation, collaboration and exibility should form the baseline of regulatory
action driven by accountability to citizens throughout the EU to ensure the credibility and legitimacy of the
Model.
Conclusion
Very few policy momentums are as signicant as the implementation of the Amended AVMSD. When
the process started back in 2016, European policy-makers’ ambition was to level the playing eld for
European media outlets competing with US-based tech giants and ghting for shrinking sources of income
62 See the “Digital European Toolkit (DET) - Content, User Experience, Usability and Prospects: Report of the ERGA Subgroup
3” 2016; available at https://ec.europa.eu/digital-single-market/en/avmsd-audiovisual-regulators; accessed on 26 September 2020.
63 See e.g. the NICAM activities with regards to the protection of minors.
64 See also Council of Europe Recommendation CM/Rec(2018)2.
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and increasingly fragmented audiences.65 The new rules with regards to VSPs were enacted to realise this
promise. Now the European NRAs are the protagonists and their signicance should not be underestimated.
This paper assesses the potential consequences of regulatory dysfunctions in the context of hate speech
regulation across Europe. The combined consequences of the Country-of-Origin principle and applying only
Irish legal standards to incitement of hatred across Europe have been presented as a worst-case scenario.
The paper argues that a Responsive Governance Model-type regulatory scheme could address and mitigate
the loss of normative diversity and corresponding social harm. An à la carte menu for the introduction of the
model is outlined. It remains to be seen how far the practical outcome will reect these recommendations.
It is important to recognise that the experiment Europe is to undertake will have considerable impact beyond
the frontiers of the EU. Failure or success will be globally assessed and reected upon. If the new regulatory
regime should prove inappropriate, the internet will continue to fragment. We have seen more and more
European governments establishing jurisdiction over platform regulation and attempting to re-nationalise
speech regulation. These trends signify the further deterioration of Internet Universality and are a hindrance
to the free ow of information. This is the context within which we have to assess the responsibility but also
the opportunity lying today with European NRAs. European users seek the protection of their rights and an
adequate balancing of freedoms and restrictions in cultural, historical and social perspectives. VSPs want
legal certainty and proportionate solutions to regulate their services. Now NRAs are in a position to live up
to this challenge by designing and operating a regulatory system that is responsive to the needs of Europe.
65 See the arguments of the “Explanatory Memorandum of the Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation
or administrative action in the Member States concerning the provision of audiovisual media services in view of changing market
realities” - COM/2016/0287 nal - 2016/0151 (COD).
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