Fighting Terrorism Online: Censorship, Platforms and Freedom of Expression across the Atlantic
Giovanni De Gregorio
SUMMARY: 1. Censorship, Terrorism and Online Platforms. - 2. Freedom of Expression across the Atlantic. - 3. Tackling Online Terrorist Content in Europe. - 4. Tackling Online Terrorist Content in the US. - 5. Online Terrorism and Private Enforcement of Fundamental Rights. - 6. Conclusions.
Censorship, Terrorism and Online Platforms
Censorship is not a new phenomenon. History shows that freedom of expression has been subject to restrictions to control the dissemination of information and ideas. 1 In particular, terrorism is one of the predominant examples demonstrating how public actors justify limitations to the flow of information across society to avoid the spread of propaganda and violent values.
The relationship between censorship and terrorism is of particular concern when the debate is framed in the digital environment.  Unlike in the past where the channels of communication were usually centralised and controlled by the public authority and the creation and distribution of information was governed by traditional media outlets, the decentralised nature of the Internet has allowed each user to freely share thoughts with a global community just through the use of an Internet connection. The case of live streaming of terrorism shootings during Christchurch attacks in New Zealand is emblematic.
Although the evolution of the digital environment has fostered freedom of expression, the evident drawbacks cannot be neglected. Primarily because of the difficulties in monitoring the vast amount of content uploaded by users, the Internet has become a channel in which to pursue illicit aims such as terrorism. Thanks to the possibilities offered by modern social media, cyberspace has become an area of attention in terms of hate, radicalisation and terrorism. Indeed, the Internet has amplified the opportunities for terrorist organisations to exploit the Web to pursue purposes such as propaganda or recruitment. Before the advent of the digital environment, terrorist recruiters had to rely on human contacts, for example, at religious premises since, unlike the Internet, mainstream media such as TV and newspapers could not be considered available instruments for terrorist organisations in western countries. Today, however, the Internet enables terrorist groups to connect and share their values across the globe not only with individuals but also with other terrorist organisations.
One of the similarities between terrorism and the Internet is their cross-border nature involving different jurisdictions and, therefore, national and supranational laws. Nevertheless, whilst it is not particularly difficult to define the online dimension as being a digital space which differs from the atomic world, the same consideration does not apply when defining acts of terrorism. Although national and international instruments have been adopted since 2001, there is still no agreed definition of it. For example, in some jurisdictions, an order to eliminate a comment on a terrorist video could be considered proportionate. Whereas, in other states, the same situation could be covered by the right to free speech. Terrorist content are forms of expression. Therefore, the primary question is how the detection and taking down of alleged terrorist content online comply with the rule of law and respect the freedom of expression of users.
However, the flow of terrorist content online is a critical challenge for constitutional states even from a transnational perspective. The Internet constitutes another layer of complexity for constitutional states. Without dealing with the issues relating to the so-called ‘dark web’, it is necessary to mention the role of online platforms in favouring the sharing of messages, contacts or content which convey terrorist values. The private nature of online platforms raises issues about the extent to which constitutional states can interfere with their freedom to run their businesses. In particular, the relevance of this observation can be understood by considering that both the EU and US exempt online intermediaries from liability for hosting third-party content.
Public and private censorship limiting expressions or the uploading of online content interferes with freedom of expression. This consideration leads to wonder how constitutional states can ensure that public authorities adopt legal rules ensuring legal certainty and respect of the rule of law. In other words, the primary challenge consists of understanding how constitutional legal orders can address terrorist threats online because of their cross-border character and the involvement of online platforms in the dissemination of such content.
However, the well-known narrative regarding the Internet as promoting illicit activities should not lead one to consider the digital environment as the primary source through which terrorism is spread across society. The cyberspace has only amplified a complex situation.11 Therefore, when dealing with the boundaries of freedom of expression online regarding alleged terrorist content, it is necessary to bear in mind that fighting online terrorism is only one of the steps in countering the problem. This observation does not mean that the Internet is not playing an important role for terrorist organisations since this channel provides a free instrument of global communication not only for propaganda purposes but also to get illegal goods such as weapons or to obtain financing. Nevertheless, when addressing content concerning terrorist activities, the attention should not be only focused on the Internet as the source of the problem. Adopting this last approach could hinder the freedoms and rights of the users, without solving the terrorist threat which is an atomic issue by nature. Fighting terrorism online with a generally preventive approach could reduce the opportunities to rely on the Internet not only for illicit purposes but, especially, for lawful ones.
At this point, it is also necessary to clarify that these questions only matter for democratic states whose legal system is based on the rule of law. However, as far as authoritarian regimes are concerned, the extension of public powers is less problematic because of the lack of strict constitutional limits. In other words, authoritarian regimes could be in a better position to tackle terrorism than constitutional states. This conclusion highlights the core of the problem. Constitutional states fight an unequal battle against terrorism since they address an enemy which is not bound by the respect of any rule and, as a consequence, enjoys a competitive advantage against public authorities which are, instead, subject to procedures compliant with the rule of law and obliged to respect fundamental rights.
Against this background, this chapter aims to provide the legal framework for countering terrorist content online by looking at how public actors, at the national and supranational level, and online intermediaries can tackle this threat and pursue public interest objectives such as security while protecting fundamental rights. In other words, it is necessary to strike a fair balance between three primary interests: ensuring the right to freedom of expression, as a cornerstone of a democratic society; tackling online terrorism to guarantee public interests such as security; protecting the freedom to conduct business of online platforms.
Within this complex constitutional exercise, this chapter analyses the EU and US legal strategies to tackle terrorist content shared through online platforms. The first part of the chapter frames the debate across the Atlantic by examining how freedom of expression enjoys a different degree of protection in the EU and the US from a constitutional law standpoint. Then, the second part addresses the attempts of the EU and the US to address online terrorism from a comparative perspective. The last part of this chapter focuses on the issue of private enforcement of fundamental rights with a specific focus on the introduction of new rights to increase the degree of transparency and accountability of online platforms when moderating online content, especially that which is of a terrorist nature.
-  For a brief introduction to the evolution of censorship see Jurgen Wilke, ‘Censorship and Freedom of the Press’ (European History Online, 8 May 2013) http://ieg-ego.eu/en/threads/european-media/ censorship-and-freedom-of-the-press accessed 19 November 2018. 2 Jeffrey Kaplan, ‘History and Terrorism’ (2011) 98(1) Journal of American History 101; Gerard Chaliand and Arnaud Blin (eds), The History of Terrorism. From Antiquity to ISIS (University of California Press, 2016). 3 Eleanor Ainge Roy, “‘No Right to Livestream Murder”: Ardern Leads Push Against Online Terror Content’ The Guardian (24 April 2019) https://www.theguardian.com/world/2019/apr/24/christchurch -call-ardern-leads-push-against-online-terror-content accessed 30 April 2019.
-  Europol, ‘European Union Terrorism Situation and Trend Report 2018’ (2018) https://www.euro pol.europa.eu/activities-services/main-reports/european-union-terrorism-situation-and-trend-report-2018-tesat-2018 accessed 11 June 2019. 2 Alexander Tsesis, ‘Terrorist Speech on Social Media’ (2017) 70(2) Vanderbilt Law Review 651; Ariel V. Lieberman, ‘Terrorism, the Internet, and Propaganda: A Deadly Combination’ (2017) 95(9) Journal of National Security Law & Policy 95; Anne Alya and Others, ‘Terrorist Online Propaganda and Radicalization’ (2017) 40(1) Studies in Conflict & Terrorism 1; Thane Rosenbaum, ‘The Internet as Marketplace of Madness - and a Terrorist’s Best Friend’ (2017) 86 Fordham Law Review 591; Giovanna De Minico, ‘Internet and Fundamental Rights in Time of Terrorism’ (2015) Rivista AIC https://www.rivistaaic.it/images/rivista/pdf/4_2014_De%20Minico.pdf accessed 10 September 2018. 3 Anne Stenersen, ‘The Internet: A Virtual Training Camp?’ (2008) 20 Terrorism & Political Violence 215; Lee Jarvis and Others (eds), Terrorism Online: Politics, Law and Technology (Routledge, 2015). 4 This is a well-known issue in the debate on law and terrorism. See, in particular, Stella Margariti, Defining International Terrorism: between State Sovereignty and Cosmopolitanism (Springer, 2017); Gus Martin, Understanding Terrorism: Challenges, Perspectives, and Issues (Sage, 2017); Alex P. Schmid, ‘The Definition of Terrorism’, in Alex P. Schmid (ed.), The Routledge Handbook of Terrorism Research (Routledge, 2011), 39; Boaz Ganor, ‘Defining Terrorism: Is One Man’s Terrorist Another Man’s Freedom Fighter?’ (2002) 3(4) Police Practice and Research 287. 5 Although, recently, international Treaties, UN Security Council resolutions and other international and regional instruments addressing terrorism-related issues have been adopted, there is still no an internationally agreed definition of terrorism. As a result, these notions are addressed in accordance with state laws and policies, leading to considerable discrepancies between different domestic frameworks.
-  Raphael Cohen-Almagor, ‘The Role of Internet Intermediaries in Tackling Terrorism Online’ (2017) 86 Fordham Law Review 425. 2 For example, finding objective criteria to identify online content conveying terrorist messages is not easy,nor is drawing a line between hate speech, violence, violent extremism, radicalisation and terrorism. See Anne Aly and Others (eds), Extremism Online, New Perspectives on Terrorism and the Internet (Routledge, 2018); David Lowe, ‘Prevent Strategies: The Problems Associated in Defining Extremism: The Case of the United Kingdom’ (2017) 40(12) Studies in Conflict & Terrorism 917; Francesca Galli, The Law on Terrorism: The UK, France and Italy Compared (Bruylant, 2015): Alex P. Schmid, ‘Violent and Non-Violent Extremism: Two Sides of the Same Coin’ (International Center for Counterterrorism (ICCT) Research Paper, May 2014) https://www.icct.nl/download/file/ICCT-Schmid-Violent-Non-Violent-Extremism-May-2014.pdf accessed 30 May 2018. 3 See Paul Gill and Others, ‘Terrorist Use of the Internet by the Numbers’ (2017) 16(1) Criminology & Public Policy 99; Ines von Behr and Others, ‘Radicalisation in the Digital Era: The Use of the Internet in 15 Cases of Terrorism and Extremism’ (Rand Corporation, 2013) https://www.rand.org/ content/dam/rand/pubs/research_reports/RR400/RR453/RAND_RR453.pdf accessed 30 May 2018. 4 Michael Jacobson, ‘Terrorist Financing and the Internet’ (2010) 33(4) Studies in Conflict & Terrorism 353.