Gone in 60 Minutes: Distribution of Terrorist Content and Free Speech in the European Union

ABSTRACT

The glorification of terrorist offenses and the dissemination of radical content in digital services pose a serious problem, which requires not only technical but also legal measures. It is therefore not surprising that legislatures, also in response to public expectations, are increasingly eager to implement new laws aimed at the removal of terrorist content. The result, however, is also a number of controversies concerning the proportionality of the measures taken – especially insofar as concerns the “flip-side” aspects of respect for freedom of speech and the creation of preventive censorship mechanisms. An example of such a measure, introduced by EU Regulation 2021/784, is the 1-hour data removal order. These orders, issued by national authorities, make it possible to oblige a digital service provider to delete online content almost immediately. The lack of prior judicial review and the short time to comply with the order are features that, on the one hand, ensure high effectiveness in removing illegal content, but on the other hand increase the risk of abuse of power. The aim of this paper is to discuss the doubts concerning the compliance of 1-hour removal orders with the EU model of fundamental rights protection. Against this background, conclusions will also be drawn from the analysis of similar German and French provisions. As a result, it will be possible to identify areas for improvement in the current legislation, which seems necessary to be taken into account in order for the EU’s actions to support public security objectives without creating the risk of a significant breach of fundamental rights.

KEYWORDS:

• Dissemination of terrorist content
• free speech
• removal orders
• upload filters
• Avia Law

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

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2. Pekka Hallberg and Janne Virkkunen, “From the Origins of Freedom of Speech to the Modern Information Society,” in Freedom of Speech and Information in Global Perspective, by Pekka Hallberg and Janne Virkkunen (New York: Palgrave Macmillan US, 2017), 61-77, https://doi.org/10.1057/978-1-34994,990-8_4.

3. James P. Scanlan, “J. S. Mill and the Definition of Freedom,” Ethics 68, no. 3 (April 1958): 194-206, https://doi.org/10.1086/291169.

4. Eric Barendt, “Freedom of Expression,” in The Oxford Handbook of Comparative Constitutional Law, ed. Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012), 891-900, https://doi.org/10.1093/oxfordhb/9780199578610.013.0044.

5. For example, the much-discussed Regulation 2016/679, cited by many as a model for other legislatures on the legal protection of personal data. See: Michael L Rustad and Thomas H Koenig, “Towards a Global Data Privacy Standard,” Florida Law Review 71 (2019): 365-453; Wolf Jürgen Schünemann and Jana Windwehr, “Towards a ‘Gold Standard for the World’? The European General Data Protection Regulation between Supranational and National Norm Entrepreneurship,” Journal of European Integration 43, no. 7 (3 October 2021): 859-74, https://doi.org/10.1080/07036337.2020.1846032; J.P. Albrecht, “How the GDPR Will Change the World,” European Data Protection Law Review 2, no. 3 (2016): 287-89, https://doi.org/10.21552/EDPL/2016/3/4.

6. Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union, OJ 2015 L 310/1.

7. See CJEU judgments in cases: Telenor Magyarország Zrt (C-807/18 and C-39/19), Vodafone v Germany (C-854/19), Telekom Deutschland (C-24/20); also: Marta Maroni, “An Open Internet? The Court of Justice of the European Union between Network Neutrality and Zero Rating,” European Constitutional Law Review 17, no. 3 (September 2021): 517-37, https://doi.org/10.1017/S1574019621000341.

8. See e.g. CJEU 10 February 2010, Case C-301/06, Ireland v Parliament and Council, ECLI:EU:C:2009:68.

9. Directive 2018/1972, adopted in 2018, replaced in this respect the provisions of the existing regulatory framework for electronic communications networks and services, which were adopted in the early 2000s.

10. Including the Digital Services Act and Digital Markets Act. Matthias Leistner, “The Commission’s Vision for Europe’s Digital Future: Proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act – a Critical Primer,” Journal of Intellectual Property Law & Practice, 22 March 2021, jpab054, https://doi.org/10.1093/jiplp/jpab054.

11. See e.g. Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ of 2019 L 130/92.

12. “Censorship machine takes over EU’s internet,” European Digital Rights (26 March 2019), <https://cli.re/KaRvKM> accessed 7 July 2022; Cory Doctorow, “The Final Version of the EU’s Copyright Directive Is the Worst One Yet,” Electronic Frontier Foundation (13 February 2019), <https://cli.re/1Xjo7R> accessed 7 July 2022.

13. Regulation (EU) 2021/784 of the European Parliament and of the Council of 29 April 2021 on addressing the dissemination of terrorist content online, OJ of 2021 L 172/79.

14. “EU Terrorist Content Online Regulation Could Curtail Freedom of Expression across Europe,” European Digital Rights (4 February 2021), <https://cli.re/47P2bN> accessed 7 July 2022; Jillian C. York and Christoph Schmon, “The EU Online Terrorism Regulation: a Bad Deal,” Electronic Frontier Foundation (7 April 2021), <https://cli.re/eqvq28> accessed 7 July 2022.

15. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, OJ of 2007 C 306/1.

16. More about new competences emerging from Art. 83 and Art. 84 of the TFEU in: Valsamis Mitsilegas, EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe, Hart Studies in European Criminal Law (Hart Publishing, 2018).

17. Article 75 of the TFEU; Peter Van Elsuwege, “The Adoption of ‘Targeted Sanctions’ and the Potential for Inter-Institutional Litigation after Lisbon,” Journal of Contemporary European Research 7, no. 4 (19 December 2011): 488-99, https://doi.org/10.30950/jcer.v7i4.401.

18. Christina Eckes, “EU Counter-Terrorist Sanctions against Individuals: Problems and Perils,” European Foreign Affairs Review 17, no. 1 (2012): 113-32; Iain Cameron, ed., EU Sanctions: Law and Policy Issues Concerning Restrictive Measures, Series Supranational Criminal Law, volume 15 (Cambridge, United Kingdom ; Antwerp [Belgium] ; Portland [Oregon]: Intersentia, 2013); Francesco Giumelli, Fabian Hoffmann, and Anna Książczaková, “The When, What, Where and Why of European Union Sanctions,” European Security 30, no. 1 (2 January 2021): 1-23, https://doi.org/10.1080/09662839.2020.1797685.

19. The term “Treaties” as used in this article will refer to the Treaty on European Union and the Treaty establishing the European Community.

20. Article 43(1) of the TEU. More about the EU cooperation mechanism in this area in: Panos Koutrakos, The EU Common Security and Defence Policy, First edition, Oxford European Union Law Library (Oxford, United Kingdom: Oxford University Press, 2013).

21. Article 222 of the TFEU. In this context, see also Council Decision 2014/415/EU of 24 June 2014 on the arrangements for the implementation by the Union of the solidarity clause, OJ of 2014 L 192/53. More about the Solidarity Clause in: Peter Hilpold, “Filling a Buzzword with Life: The Implementation of the Solidarity Clause in Article 222 TFEU,” Legal Issues of Economic Integration 42, no. 3 (2015): 209-32.

22. In this regard, it should also be borne in mind that the fight against terrorism is not only the prerogative of the Member States but also their duty, stemming also from the norms of international law. See e.g. Resolution 2178 (2014) adopted by the UN Security Council on 24 September 2014.

23. An example is the Tele2 Sverige judgment, where terrorism is listed among both threats to state security (para. 119) and serious crimes (para. 103): CJEU 21 December 2016, Case C-203/15 and C-698/15, Tele2 Sverige, ECLI:EU:C:2016:970.

24. Article 4(2) of the TEU; Elke Cloots, National Identity in EU Law (Oxford University Press, 2015), https://doi.org/10.1093/acprof:oso/9780198733768.001.0001.

25. Marcin Rojszczak, “National Security and Retention of Telecommunications Data in Light of Recent Case Law of the European Courts,” European Constitutional Law Review 17, no. 4 (2021): 607-35, https://doi.org/10.1017/S1574019621000353; Marek Zubik, Jan Podkowik, and Robert Rybski, eds., European Constitutional Courts toward Data Retention Laws, Law, Governance and Technology Series (Springer, Cham, 2021).

26. CJEU 4 December 1974, Case C-41/74, van Duyn v Home Office, ECLI:EU:C:1974:133.

27. CJEU 14 October 2004, Case C-36/02, Omega Spielhallen- und Automatenaufstellung, ECLI:EU:C:2004:614.

28. Such a conclusion results, inter alia, from the judgment in Commission v Luxembourg (C-51/08, p. 124), in which the Court indicated the need to implement the least-restrictive measure test when examining the legitimacy of invoking the national identity clause resulting from Article 4(2) of the TEU.

29. CJEU 6 October 2020, Case C-511/18, C-512/18 and C-520/18, La Quadrature du Net and Others, ECLI:EU:C:2020:791, para. 103.

30. Ibid., para. 101.

31. Rocco Bellanova and Marieke Goede, “Co-Producing Security: Platform Content Moderation and European Security Integration” [2021] JCMS: Journal of Common Market Studies jcms.13306.

32. Its application arises from Article 14(1) of 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, OJ of 2000 L178/1.

33. For more on the notice and takedown model, see: Gerald Spindler, “Responsibility and Liability of Internet Intermediaries: Status Quo in the EU and Potential Reforms,” in EU Internet Law, ed. Tatiana-Eleni Synodinou et al. (Cham: Springer International Publishing, 2017), 289-314, https://doi.org/10.1007/978-3-31964,955-9_12; Robert Spano, “Intermediary Liability for Online User Comments under the European Convention on Human Rights,” Human Rights Law Review 17, no. 4 (1 December 2017): 665-79, https://doi.org/10.1093/hrlr/ngx001.

34. CJEU, Case C-18/18, 3 October 2019, Glawischnig-Piesczek v Facebook, EU:C:2019:821, para 19.

35. ECtHR, Appl. 64569/09, Delfi AS v. Estonia (2015), para. 115. An analysis of the case is presented in: Neville Cox, “Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights,” Modern Law Review 77, no. 4 (2014): 619-29.

36. Felipe Romero Moreno, “‘Upload Filters’ and Human Rights: Implementing Article 17 of the Directive on Copyright in the Digital Single Market,” International Review of Law, Computers & Technology 34, no. 2 (3 May 2020): 153-82, https://doi.org/10.1080/13600869.2020.1733760.

37. The obligation to comply with an order to take action against specific illegal content also results from the provisions of the Digital Services Act, a new law that is to replace the provisions of the e-Commerce Directive and will become applicable as of 24 February 2024. See Art. 9 of regulation 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), OJ of 2022 L 277/1.

38. Glawischnig-Piesczek v Facebook case (n 34), para. 41.

39. Aleksandra Kuczerawy, “From ‘Notice and Takedown’ to ‘Notice and Stay Down:’ Risks and Safeguards for Freedom of Expression,” in Oxford Handbook of Online Intermediary Liability, ed. Giancarlo Frosio (Oxford University Press, 2020), 523-43, https://doi.org/10.1093/oxfordhb/9780198837138.013.27.

40. Delfi case (n 35), para. 115.

41. Jacob Mchangama and Natalie Alkiviadou, “The Digital Berlin Wall: How Germany (Accidentally) Created a Prototype for Global Online Censorship – Act Two” (Justitia, 2020).

42. See the Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen (Federal Act adopting a Communication Platforms Act and amending the Austrian Communications Authority Act), English translation available at: https://cli.re/MN44My.

43. See draft Online Safety Bill, version of 19 December 2022, https://publications.parliament.uk/pa/bills/cbill/58-03/0220/220220.pdf. For a more detailed comparison of the NetzDG and the planned UK regulation, see: Stefan Theil, “The Online Harms White Paper: Comparing the UK and German Approaches to Regulation,” Journal of Media Law 11, no. 1 (2 January 2019): 41-51, https://doi.org/10.1080/17577632.2019.1666476.

44. Gesetz vom 1.09.2017 zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken, BGBl. I 2017, Nr. 61 07.09.2017, S. 3352. English translation available at: <https://cli.re/Vp7Zab> accessed 7 July 2022.

45. Amélie Heldt, “Reading between the Lines and the Numbers: An Analysis of the First NetzDG Reports,” Internet Policy Review 8, no. 2 (12 June 2019), https://doi.org/10.14763/2019.2.1398.

46. Sec. 3(1)(2) of the NetzDG.

47. This limitation excludes the possibility of issuing data removal orders to smaller entities. This circumstance is discussed in terms of its reducing the effectiveness of the adopted regulatory model, especially taking into account the growing importance of smaller and niche alt-tech online platforms in the ecosystem of disseminating violent and extremist content. See “Trends in Terrorist and Violent Extremist Use of the Internet,” Tech Against Terrorism (July 2021), <https://cli.re/1VY293> accessed 4 July 2023; Patrick Bishop and Stuart Macdonald, “Terrorist Content and the Social Media Ecosystem: the Role of Regulation,” in Digital Jihad. Online Communication and Violent Extremism, ed. Francesco Marone (Milano: Istituto per gli Studi di Politica Internazionale, 2019), 135-52, 10.14672/55261357.

48. Eugénie Coche, “Privatised Enforcement and the Right to Freedom of Expression in a World Confronted with Terrorism Propaganda Online,” Internet Policy Review 7, no. 4 (5 November 2018), https://doi.org/10.14763/2018.4.1382.

49. Imara McMillan, “Enforcement Through the Network: The Network Enforcement Act and Article 10 of the European Convention on Human Rights,” Chicago Journal of International Law 20, no. 1 (2019): 252-90.

50. Amélie Heldt, “Germany Is Amending Its Online Speech Act NetzDG…. but Not Only That,” Internet Policy Review, 6 April 2020, https://cli.re/eqvr29.

51. BGH 29 July 2021, III ZR 179/20 and III ZR 192/20.

52. BGH 29 July 2021, III ZR 179/20, para. 71.

53. Loi n° 2020-766 du 24 juin 2020 visant à lutter contre les contenus haineux sur internet (Act n° 2020-766 of 24 June 2020 aimed at combating hateful content on the internet); the version of the Act that was later subject to constitutional review available at: <https://cli.re/1daYrb> accessed on 7 July 2022.

54. In fact, the Avia Law was an amendment to the Loi n° 2004-575 du 21 juin 2004 pour la confiance dans l’économie numérique (Act n° 2004-575 of 21 June 2004 for confidence in the digital economy).

55. Sec. 1(2) of the NetzDG.

56. Article I-2 of the Avia Law.

57. Contents of the constitutional complaint dated 18 May 2020, <https://cli.re/aNJJRP> accessed on 7 July 2022.

58. Conseil Constitutionnel, Case 2020-801 (18 June 2020), FR:CC:2020:2020.801.DC, <https://cli.re/pZr2Jw> accessed on 7 July 2022.

59. Ibid., para. 7.

60. Ibid., para. 8-9.

61. More about further development of French legislation in: Thomas Hochmann, “Hate Speech Online: The Government as Regulator and as Speaker,” Journal of Media Law 14, no. 1 (2 January 2022): 139-58, https://doi.org/10.1080/17577632.2022.2085014.

62. See the wording of Art. 2-II, defining an obligation of service providers to “put in place, for users located on the French territory, a uniform notification system” [emphasis added].

63. CJEU, Case C-43/71, 14 December 1971, Politi, ECLI:EU:C:1971:122, para. 9.

64. Gavin Robinson, “The European Commission’s Proposal for a Regulation on Preventing the Dissemination of Terrorist Content Online”, Eucrim – The European Criminal Law Associations’ Forum, 2018, https://doi.org/10.30709/eucrim-2018-024.

65. Article 3 of the Terrorist Content Regulation.

66. Article 5 of the Terrorist Content Regulation.

67. See e.g. “Trilogues on terrorist content: Upload or re-upload filters? Eachy peachy,” European Digital Rights (17 October 2019), <https://cli.re/xa1yvq> accessed 7 July 2022.

68. See also Art. 4 of the Terrorist Content Regulation, which stipulates additional safeguards in the case of issuing a cross-border order.

69. See Art. 3(7) and (8) of the Terrorist Content Regulation.

70. According to Article 4(4) of the Regulation, this decision should, in principle, be taken within 72 h of receipt of the request, that is long after the time limit for its implementation.

71. “Free Speech Advocates Urge EU Legislatures to Vote ‘No’ to Automated Censorship Online,” Liberties (25 March 2021), <https://cli.re/Nn4yV9> accessed 7 July 2021; “Open letter to Members of the European Parliament regarding the Regulation on addressing the dissemination of terrorist content online (TERREG),” <https://cli.re/qBY4JW> accessed 7 July 2022.

72. See the wording of recital (13) adopted in the Parliament version of the draft Regulation: European Parliament legislative resolution of 17 April 2019 on the proposal for a regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online, P8_TA(2019)0421.

73. See the scope of changes introduced in the draft Regulation during the trialogue: Communication from the Commission to the European Parliament concerning the position of the Council on the adoption of a Regulation of the European Parliament and the Council to address the dissemination of terrorist content online, <https://cli.re/xakR91> accessed 7 July 2022.

74. Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, OJ of 2017 L 88/6.

75. Antonio Caiola, “The European Parliament and the Directive on Combating Terrorism,” ERA Forum 18, no. 3 (September 2017): 409-24, https://doi.org/10.1007/s12027-017-0476-1.

76. Article 5 of the Terrorism Directive.

77. See recitals (41)-(42) of the Terrorism Directive.

78. Koen Lenaerts, “Limits on Limitations: The Essence of Fundamental Rights in the EU,” German Law Journal 20, no. 6 (September 2019): 779-93, https://doi.org/10.1017/glj.2019.62.

79. The video titled “How to quickly start and drive away with a Russian T-72 tank” was published on 9 March 2022 and in three months gained an audience of more than 1.2 million of users. The material was prepared by a professional team and includes Ukrainian subtitles. See: https://www.youtube.com/watch?v=Jp7L4MhRkTQ, accessed 7 June 2022.

80. Tarik Gherbaoui and Martin Scheinin, “Time to Rewrite the EU Directive on Combating Terrorism,” Verfassungsblog: On Matters Constitutional, 25 January 2022, https://doi.org/10.17176/20220125-180,241-0.

81. European Union Agency for Fundamental Rights, Directive (EU) 2017/541 on Combating Terrorism: Impact on Fundamental Rights and Freedoms (Publications Office 2021) <https://data.europa.eu/doi/10.2811/441> accessed 7 June 2022.

82. List of infringement procedures initiated by the European Commission, <https://cli.re/EmVdDZ> accessed 7 July 2022.

83. Commission Staff Working Document. Impact Assessment. Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters and Proposal for a Directive of the European Parliament and of the Council laying down harmonized rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings, SWD(2018) 118 final, <https://cli.re/PVQnQv> accessed on 7 July 2022, 17.

84. Proposal for a regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters, COM/2018/225 final, <https://cli.re/bMoPVV> accessed 7 July 2022.

85. Marcin Rojszczak, “E‐Evidence Cooperation in Criminal Matters from an EU Perspective,” Modern Law Review 85, no. 4 (2022): 997-1028, https://doi.org/10.1111/1468-2230.12749; Borka Jerman Blažič and Tomaž Klobučar, “Removing the Barriers in Cross-Border Crime Investigation by Gathering e-Evidence in an Interconnected Society,” Information & Communications Technology Law 29, no. 1 (2 January 2020): 66-81, https://doi.org/10.1080/13600834.2020.1705035.

86. Art 13(2) of the Terrorist Content Regulation.

87. See recital (35): “it should be possible for each Member State to decide (…) whether [competent authorities] are administrative, law enforcement or judicial.”

88. Such conclusions were also presented by non-governmental organizations, see e.g. “Recommendations for the European Parliament’s Draft Report on the Regulation on preventing the dissemination of terrorist content online,” European Digital Rights (December 2018), <https://cli.re/BmkbzP> accessed on 7 July 2022.

89. ECtHR, Appl. 3111/10, Ahmet Yıldırım v. Turkey (2012), para. 64

90. ECtHR, Appl. 39288/98, Association Ekin v. France (2001), para. 58.

91. ECtHR, Appl. 48226/10 and 14,027/11, Cengiz and Others v. Turkey (2015), para. 62.

92. ECtHR, Appl. 3111/10, Ahmet Yıldırım v. Turkey (2012), para. 68.

93. Martina Coli, “Article 7 TEU: From a Dormant Provision to an Active Enforcement Tool?,” Perspectives on Federalism 10, no. 3 (1 September 2018): 272-302, https://doi.org/10.2478/pof-2018-0039.

94. European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, P8_TA(2018)0340.

95. Reasoned proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland, COM(2017) 835 final, <https://cli.re/RdjvZz> accessed on 7 July 2022.

96. It should be noted that both in Hungary and in Poland, in parallel to the ongoing rule of law crisis, limitations on media pluralism and freedom of speech can be observed. What is more, in 2021 the Polish government also proposed the adoption of its own regulations aimed at introducing new measures for filtering content on social media. Gábor Polyák, “Media in Hungary: Three Pillars of an Illiberal Democracy,” in Public Service Broadcasting and Media Systems in Troubled European Democracies, ed. Eva Połońska and Charlie Beckett (Cham: Springer International Publishing, 2019), 279-303, https://doi.org/10.1007/978-3-03002,710-0_13; Paweł Surowiec, Magdalena Kania-Lundholm, and Małgorzata Winiarska-Brodowska, “Towards Illiberal Conditioning? New Politics of Media Regulations in Poland (2015-2018),” East European Politics 36, no. 1 (2 January 2020): 27-43, https://doi.org/10.1080/21599165.2019.1608826. Adam Easton, “Poland proposes social media ‘free speech’ law,” BBC News (15 January 2021), <https://www.bbc.com/news/technology−55,678,502> accessed on 7 July 2022.

97. See the data presented in: Wiesława Moczydłowska, “Krócej czekamy na rozpatrzenie sprawy w sądach administracyjnych” [We wait a shorter time for cases to be heard in administrative courts], Prawo.pl (15 September 2020), <https://cli.re/REzzev> accessed 4 January 2023.

98. ECtHR, Appl. 28255/07, Cumhuriyet Vakfı and Others v. Turkey (2013), para. 73.

99. According to the case-law of the CJEU, the Disciplinary Chamber of the Polish Supreme Court cannot be regarded as such a court (see case C-791/19). In turn, the ECtHR has indicated that the Extraordinary Control Chamber of the Polish Supreme Court is not a court of law (see joined cases 49,868/19 and 57,511/19), nor is one the Polish Constitutional Tribunal (see case 4907/18). For more on the crisis of the judiciary in Poland, see: Fryderyk Zoll and Leah Wortham, “Judicial Independence and Accountability: Withstanding Political Stress in Poland,” Fordham International Law Journal 42, no. 3 (2019): 875-948; Wojciech Sadurski, “Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler,” Hague Journal on the Rule of Law 11, no. 1 (April 2019): 63-84, https://doi.org/10.1007/s40803-018-0078-1; Marcin Szwed, “The Polish Constitutional Tribunal Crisis from the Perspective of the European Convention on Human Rights: ECtHR 7 May 2021, No. 4907/18, Xero Flor w Polsce Sp. z o.o. v Poland,” European Constitutional Law Review 18, no. 1 (March 2022): 132-54, https://doi.org/10.1017/S1574019622000050.

100. Kate Klonick, “The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression,” Yale Law Journal 129, no. 8 (2020): 2418-99.

101. Ruby O’Kane, “The Met’s Private Speech Governance and the Role of the Oversight Board: Lessons from the Board’s First Decisions,” Stanford Technology Law Review 25, no. 2 (2022): 167-209.

102. Daniel Holznagel, “A Self-Regulatory Race to the Bottom through Art. 18 Digital Services Act: How the DSA will introduce competition for the Meta Oversight Board (and the German FSM) and why we should be worried about this,” VerfBlog (16 March 2022), DOI: 10.17176/20220316-121,129-0.

103. The Court has, inter alia, considered it acceptable to apply Article 114 of the TFEU (on the harmonization of national laws) even in order to prevent the uneven development of national laws which may lead to obstacles to the exercise of the freedoms guaranteed by the Treaties – see CJEU, Case C-376/98, 5 October 2000, Germany v Parliament and Council, ECLI:EU:C:2000:544, para 49. At the same time, however, it regarded as unacceptable the adoption on that basis of regulations for which “improvement of the conditions for the functioning of the internal market is an ancillary objective” – see CJEU, Case C-137/12, 22 October 2013, Commission v Council, ECLI:EU:C:2013:675, para 76. In the context of a terrorist-related regulation, see also the reasoning presented in the Ireland v Parliament and Council case (n 8).

104. See e.g. CJEU, Case C-682/18 and C-683/18, 22 June 2021, YouTube and Cyando, ECLI:EU:C:2021:503, para 115. Justin Hughes, “Joined Cases C-682/18 and C-683/18 Peterson v. Google & YouTube And Elsevier v. Cyando (C.J.E.U.),” International Legal Materials, 16 November 2021, 1-30, https://doi.org/10.1017/ilm.2021.47.

105. A draft act that is currently being processed in Poland assigns to a security service – the Internal Security Agency – the role of a competent authority under the Terrorist Content Regulation, whose decisions regarding content blocking will not be subject to prior judicial review. See Art. 26a of a draft act amending the Act on Anti-terrorist Activities and the Act on the Internal Security Agency and the Foreign Intelligence Agency, <https://cli.re/1P9RYK> accessed 4 January 2023.

106. Stanisław Tosza, “Internet Service Providers as Law Enforcers and Adjudicators. A Public Role of Private Actors,” Computer Law & Security Review 43 (November 2021): 105614, https://doi.org/10.1016/j.clsr.2021.105614.

107. European Union Agency for Fundamental Rights, Proposal for a Regulation on Preventing the Dissemination of Terrorist Content Online and Its Fundamental Rights Implications. (Publications Office 2019).

108. See earlier comments regarding the LQN case.