A war of words: EU sanctions and the blocking of online ‘disinformation’

The decision by Western powers to fight the war in Ukraine through swingeing sanctions regimes is widely regarded as a hugely powerful demonstration of the West’s unified commitment to the championing of liberal democratic values, in the face of an amoral totalitarian aggressor. However, an important question which falls to be answered is whether those regimes may ironically also pose a threat to the very values they are seeking to defend, particularly insofar as they operate so as to curb media and online freedoms; free expression of course being one of the cornerstones of any liberal democracy. This question has now become very hard-edged, particularly as a result of the interpretation which the EU Commission is apparently placing on particular EU sanctions legislation embodied in EU Regulation 2022/350 (“the Regulation”).

The Regulation provides that it is prohibited for ‘operators’ to ‘broadcast or to enable, facilitate or otherwise contribute to broadcast any content’ by the Russian State-sponsored channels Russia Today (RT) and Sputnik ‘including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service providers, internet video-sharing platforms or applications, whether new or pre-installed’ (see Article 1 of the Regulation, which inserts a new Article 2(f) into sanctions legislation enacted by the EU in 2014, in response to Russia’s illegal annexation of the Crimea and Sevastopol).

The adoption of the Regulation by the EU on 1 March 2022 effectively resulted in a situation where RT and Sputnik were unable to broadcast their content in Europe. The EU’s President, Ursula von der Lyen stated, with respect to the Regulation that it was intended to ‘ban in the EU the Kremlin’s media machine’ and that ‘The state-owned Russia Today and Sputnik, as well as their subsidiaries will no longer be able to spread their lies to justify Putin’s war and to sew division in our Union’. The ban was presented as a tool to prevent ‘toxic and harmful disinformation in Europe’. The introduction of the Regulation promptly led to digital platforms based in the EU ceasing to broadcast RT and Sputnik. This had an immediate impact on UK viewers because, whilst the UK is no longer in the EU, the ban applied to satellite companies in Luxembourg and France, which provided the RT feed to various domestic broadcasters, including Sky, Freesat and Freeview.

However, a point which was not necessarily clear on the face of the Regulation was how it impacted particularly on internet companies, for example on internet search engines which may be indexing third party websites containing RT/Sputnik content or social media platforms which were hosting posts containing such content. It now appears that the EU Commission has taken the view that the Regulation should be construed widely so as to encompass all such indexing/hosting activities: see further this message which appears to have been sent by the Commission to Google LLC on 4 March 2022.

The message reaches the following conclusions as to the effect of the Regulation on respectively internet search engines (ISEs) and social media platforms (SMPs):

  • ‘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’
  • ‘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 … 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’.

The Commission goes on to note with respect to SMPs:

‘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.’

It is perhaps unsurprising that the EU Commission has interpreted the Regulation in this expansive manner. After all, if RT/Sputnik content could be readily disseminated through online intermediaries, then that would immediately risk the Regulation becoming a dead letter, particularly bearing in mind that many of us do now consume our news through use of online intermediaries, rather than through traditional broadcast channels. However, before we all rush headlong into endorsing this outcome, we do need to ponder carefully its implications.

The first important point which comes to mind is that it is an outcome which raises serious questions as to whether the EU, in pursuit of the laudable aim of defeating Putin’s war machine, may be unduly threatening free speech rights. As to this, it has always been a founding feature of the free expression doctrine that all speech must be tolerated, save possibly for speech which induces/encourages criminality; the idea being that democracy is strengthened through free and open debate, rather than through the State-led suppression/censoring of speech. This freedom has of course been jealously guarded in the United States, where it is constitutionally enshrined in the First Amendment. The Regulation (particularly as interpreted by the Commission) inevitably constitutes an important inroad into that freedom. What then is the justification for this inroad?

The EU Commission’s answer to this question would presumably run as follows: RT and Sputnik are spreading toxic disinformation (false facts) which are apt fundamentally to mislead viewers and, by extension, risk increasing support for Putin’s grossly unjust war and/or opposition to the EU’s position on the war; given the many lives at stake and the threat posed to the Global world order, the balance tips firmly in favour of requiring the censorship of such material, at least for the duration of the war.

On its face that is a compelling answer: we (and above all the people of Ukraine) live in extremely dangerous times; the internet is a place where untruths can, as we all know, readily masquerade as ‘facts’; surely, if ever there was a time when the internet needed to be sanitised/de-falsified, now is that time. However, a note of caution must at this point be sounded, for a number of reasons.

  • First, there is an acute informational paternalism at work here which must be recognised for what it is: the EU has decided that a large section of the world’s population should not be able to see for themselves what Putin’s propaganda machine is pumping out, for fear that, in their ignorance, they may regard that propaganda as the truth. Is this a form of paternalism we should be embracing, particularly taking into account the facts that – very much in contrast with people living in Russia – EU/UK citizens are in a position to analyse that propaganda critically, by reference to a wide array of competing media/online output, and, further, to debate the truthfulness of that content openly, without fear of reprisal from the State? Such paternalism would seem to be very much at odds with Western liberal values, and the long-standing tradition of cherishing the free expression doctrine, no matter the circumstances.
  • Second, RT and Sputnik are by no means the only insidious disinformation forces at work in the world. There is accordingly inevitably a risk that this Regulation may in future become the template which routinely shapes the response of Western governments to such forces. But is it really right that the best way to defeat disinformation is to silence it, as opposed to calling it out for what it is, and leaving citizens to form their own view? That this Regulation may establish a precedent for the future management of ‘disinformation’ by Western governments is itself an issue which should give cause for concern.
  • Third, what message does it send out to developing democracies if more established democracies seek to meet the challenges created by those seeking to propagate disinformation by orienting firmly towards censorship, particularly given that ‘disinformation’ is a label that can itself be applied very liberally. A move towards censorship on the part of established democracies hardly encourages commitment to free speech values throughout the rest of the world.
  • Fourth, and as the Commission’s message itself acknowledges, its interpretation of the Regulation will require online intermediaries to make potentially very difficult decisions as to whether particular content is effectively sanctioned, or whether it falls outside the scope of the Regulation (e.g. on the basis that it comprises protectable editorial commentary on RT/Sputnik output). This is a significant problem in its own right, for what online intermediary is going to want to run the risk of being found to have hosted/disseminated sanctioned content? The pressure on the intermediaries to err consistently in favour of taking material down, even if it ultimately amounts to protectable speech, is likely to be overwhelming. The resulting risk of an undue chilling effect on online speech is clear and obvious, and must be a matter of considerable concern given the importance of ensuring the protection of protectable speech on issues relating to Russia and the war in Ukraine.

These are matters which all policy-makers should be considering extremely carefully as we move through these perilous times.

Beyond these significant free-speech considerations, it is also important to recognise the way in which this new law appears to stand in tension with the protections afforded to online intermediaries under the E-Commerce legislation (as enshrined in EU Directive 2000/31/EC, now part of EU ‘retained law’ in the UK), a point which the Commission again explicitly acknowledges in its message.

Article 15 of the Directive provides that Member States may not impose a general obligation on online intermediaries to monitor the content they index or host or seek facts or circumstances indicating illegal activity. When read together with other provisions of the Directive, this provision has long been interpreted as meaning that, whilst intermediaries can be required to reactively take down illegal content once they are put on notice of that content, they cannot be required to monitor proactively the content they index/host for the purposes of detecting potential unlawful content of their own motion. On its face, the Regulation (as interpreted by the Commission) appears to cut across this important protection for intermediaries, in that it appears to require them to proactively monitor content with a view to detecting and removing content that may be sanctioned. Whilst it is true to say that the CJEU has already begun to chip away at this legislative protection through a number of its judgments (see not least UPC Telekabel Wien (2014) Case-314/1239 and Eva Glawischnig-Piesczek v Facebook (2019) Case C-18/18), the Regulation appears to constitute a very stark legislative challenge to the protections provided to intermediaries under Article 15.

Importantly, that challenge comes at a time when the legislatures in both the EU and the UK are already avidly considering new proposed laws aimed at reorienting online intermediaries towards more proactive monitoring of their content. In the EU, those proposed laws take the form of the proposed Digital Services Act; in the UK they take the form of the Online Safety Bill. Absent a successful legal challenge, the Regulation is, at the very least, likely to embolden those legislators who are in favour of increasing the pressure on online intermediaries to proactively regulate (i.e. censor) the content which they index or host. This too raises important free speech issues, including not least whether society stands to benefit from turning global tech companies into proactive censors of online speech. On that issue, it is worth noting that the new revamped Online Safety Bill is due to be presented to the UK Parliament this Thursday (16 March 2022), and so the issues raised by the Regulation could hardly be more current or more pressing.

Anya Proops QC