The Volokh Conspiracy
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This happened last week, but I just learned about it today. Here's what appears to be the EU order, from a takedown request archived in the Lumen Database; I used a VPN to do searches from Belgium and France, and indeed saw that no search results from those sites come up, and Google gives the takedown request as a justification.
I'm appalled by Putin's invasion of Ukraine, and I appreciate that the information war is a big part of the war (though a war in which, officially, the EU is not a combatant). But restrictions on the availability of one side's views also obviously limit the European public's ability to get a full picture of the war, for instance in deciding what to think and do about the European reaction to the invasion. (Even the Kremlin's lies say something important about the Kremlin's perspectives and attitudes; plus the sites are blocked in their entirety, including their long-ago archives and other materials that aren't part of at least this information war.) And of course it might be worth trying to game out whether this is likely to lead to pressure to similarly vanish content from other countries that are accused of misconduct (whether justifiably or not), such as China, Israel, etc.
In any event, I'd love to hear people's views on the subject; I include at the end of this post one reaction from a colleague, sent when I posted a query to a law professor discussion list.
Here's the takedown demand:
Date: Fri, Mar 4, 2022, 6:57 PM
I am sending you the below email on behalf of [redacted], in order to provide clarifications related to the sanctions, following up on questions received.
Kind regards, [redacted]
Disclaimer: please note that this is an informal position, which does not bind the Commission. Please also note that it is for national judges and ultimately for the European Court of Justice to rule on the interpretation of Union law.
Internet search services
In the Regulation the legislator intends to set out a very broad and comprehensive prohibition. Internet search services are provided by "operators" for the purposes of the Regulation. The Regulation prohibits both the broadcasting (which is a very broad concept in this Regulation) and the fact that operators "enable, facilitate or otherwise contribute to broadcast".
The Regulation refers in that regard to "including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." Furthermore, the anti-circumvention clause laid down in the Regulation is worded in very broad terms. A broad construction of the prohibition laid down in the Regulation is also consistent with its objective, which is in particular to tackle the fact that RT and Sputnik have to date gravely distorted and manipulated facts and have repeatedly and consistently targeted European political parties, especially during election periods, as well as civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States (recital 6); the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts (recital 7).
Search engines such as Google are designed to index results containing any possible content; they index websites throughout the world; the information is indexed by their 'web crawlers' or robots, that is to say, computer programmes used to locate and sweep up the content of web pages methodically and automatically (see by analogy judgment of the ECJ in Google Spain, C‑131/12, para. 43). The activity of search engines plays a decisive role in the overall dissemination of content in that it renders the latter accessible to any internet user making a search on the basis of the content indication or related terms, including to internet users who otherwise would not have found the web page on which that content is published (see by analogy judgment of the ECJ in Google Spain, C‑131/12, para. 36). Consequently, if search engines such as Google did not delist RT and Sputnik, they would facilitate the public's access to the content of RT and Sputnik, or contribute to such access.
It follows from the foregoing that by virtue of the Regulation, providers of Internet search services must make sure that i) any link to the Internet sites of RT and Sputnik and ii) any content of RT and Sputnik, including short textual descriptions, visual elements and links to the corresponding websites do not appear in the search results delivered to users located in the EU.
In the Regulation the legislator intends to set out a very broad and comprehensive prohibition. Social media are operators and they offer a service to their users. The Regulation prohibits both the broadcasting (which is a very broad concept in this Regulation) and the fact that operators "enable, facilitate or otherwise contribute to broadcast". The Regulation refers to "including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications." Furthermore, the circumvention clause is worded in very broad terms. A broad construction of those terms is also consistent with the objective of the Regulation, which aims to tackle the fact that RT and Sputnik have to date gravely distorted and manipulated facts and have repeatedly and consistently targeted European political parties, especially during election periods, as well as civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States (recital 6); the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts (recital 7).
It follows from the foregoing that social media must prevent users from broadcasting (lato sensu) any content of RT and Sputnik. That applies both to accounts which appear as belonging to individuals who are likely to be used by RT/Sputnik and to any other individuals. Moreover, social media accounts that either formally or de facto belong to RT and Sputnik or their affiliates must be suspended because it is prohibited under paragraph 1 and furthermore falls into "distribution arrangement".
As regards the posts made by individuals that reproduce the content of RT and Sputnik, those posts shall not be published and, if published, must be deleted. There is of course a dividing line between, on the one hand, content by RT and Sputnik reproduced (broadcast) by an individual and, on the other hand, content by the author of the post; that line needs to be drawn also because the Regulation needs to be construed in line with the principle of proportionality and the fundamental right to freedom of speech. Admittedly, that line might be difficult to draw in certain cases in practice. It is true that social media are put under strain and that is in tension with the prohibition of general monitoring obligation laid down in Art. 15 E-commerce Directive.
However, the decision to fully depart in the present Regulation from the E-commerce Directive has been a conscious one and justified on the ground of the situation and its temporary character.
Use of the content in media reporting on the sanction
Pursuant to the freedom of speech, media have the right to report objectively on current events and to form their opinions thereon. The freedom of speech also entails that users have the right to receive objective information on current events. At the same time, the right to free speech can be restricted for legitimate public interests in a proportionate manner.
Where a media outlet other than Russia Today and Sputnik reports about the current Regulation and it consequences, it may inter alia provide the content and in that regard it may refer to pieces of news by RT and Sputnik, in order to illustrate the type of information given by the two Russian media outlets concerned with a view to informing their readers/viewers objectively and completely. The right of free speech of other media outlets can however not be used to circumvent the Regulation: under Article 12, "It shall be prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions in this Regulation." Therefore, if another media outlet purports to inform its readers/viewers, but in reality its conduct aims at broadcasting Russia Today or Sputink content to the public or has that effect, it will be in breach of the prohibition laid down in the Regulation.
Here's one reaction, from my UCLA Law colleague Prof. Neil Netanel:
The European Council regulation expressly applies to Internet services, not just broadcast media. That makes sense to me. The regulation cites not only the RT and Sputnik disinformation campaign regarding Ukraine, but also their repeated and consistent dissemination of hate speech and propaganda targeting the function of democratic institutions in the European Union and its Member States, as well as propaganda aimed at destabilizing EU countries that border Ukraine.
The regulation is an expression of Europe's prevailing post-WWII "militant democracy" understanding of constitutional governance, pursuant to which democratic states must balance rights of free expression and association against the need for democracies to defend themselves against anti-democratic actors who exploit democratic liberties to undermine democracy. RT and Sputnik have been highly effective in exploiting Internet services to undermine democracy in Europe.
The regulation does not appear to ban critical analysis that includes excerpts of RT or Sputnik feed, so long as it is not a thinly disguised means to act as a substitute for RT or Sputnik.
It also appears that RT France is challenging EU's general sanctions on RT and Sputnik News in court.
UPDATE: Here's a reaction from Daphne Keller (Stanford), author of Amplification and Its Discontents: Why Regulating the Reach of Online Content Is Hard:
Just to clarify, while the concepts and language in the March 1 Reg look like broadcasting law under instruments like the Audio Visual Media Services Directive, its legal basis actually lies in sanctions authority. The March 1 Reg is an amendment to existing sanctions law.
This of course adds to confusion about what the March 1 regulation means, and whether the interpretation advanced by the EU in the communication Eugene pasted here is valid. Over in my corner of EU Internet law Twitter, the EU's interpretation is widely disparaged, but I imagine there are other schools of thought out there.
Other troubling parts of the EU's interpretation, to me, are
- It requires removing RT/Sputnik content even when it is shared by ordinary users on social media or posted by webmasters for any purpose. No exemptions for critical discussion, etc. (There is a *media* exception but not one for Internet users and platforms. And even the media exception is remarkably narrow.)
- It is asking platforms to proactively *prevent* users from sharing this content, using filters. That's why it talks about eCommerce Directive Art. 15. You could write a final exam on both the technical logistics and the legal/fundamental rights issues with that.