Hate speech inciting violence now potentially illegal under EU law, regulator says

The era of self-regulation of online platforms is over, although social media companies will remain the “first line of defence” against illegal content, according to Coimisiún na Meán’s Digital Services Commissioner John Evans.

Mr Evans was speaking as a European Union directive aimed at preventing illegal activity and the spread of disinformation online came into effect over the weekend.

“Platforms large and small will have to be accountable for illegal content on their platforms, and also for content on their platforms that breaches their community rules,” Mr Evans said.

There is a “long list of content that could potentially be illegal”, including hate speech that incites violence, he said.

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The Digital Services Act, an EU directive that aims to “make the online environment safer, fairer and more transparent”, was introduced in November 2022 and since Saturday applies fully across all EU member states.

Under the directive, online platforms of a certain size must implement various measures, including mechanisms to counter illegal content, protect minors, and provide information to users affected by content moderation decisions.

In the Republic, Coimisiún na Meán will operate under the directive, with the power to investigate platforms, impose fines, and issue compliance notices and orders to end infringements.

The parameters of what qualifies as illegal content is broad, Mr Evans told RTÉ radio 1′s This Week on Sunday.

“If there is content that conveys a credible threat of violence; if it’s part of a campaign of harassment; if it’s offensive in a kind of sexual nature; if it encourages people to commit suicide or makes information available for them to do that – there’s a long list of content that could potentially be illegal, and if that content is posted, then the platform, once it becomes aware of it, has to take it down,” Mr Evans said.

Asked if hate speech would qualify as illegal under the EU legislation, Mr Evans said: “If it can incite violence, yes, of course, yes, potentially.”

[ EU law on harmful speech could make Ireland’s hate offences Bill obsolete ]

Misinformation or disinformation is not content that is clearly illegal, a “grey area”, Mr Evans said, and Coimisiún na Meán will not have the power to order the immediate removal of such content. “Some platforms have different views on what constitutes unacceptable material,” he said.

Mr Evans noted that the Digital Services Act contains specific provisions regarding misinformation and disinformation on larger online platforms that are the responsibility of the European Commission.

Online platforms will remain the “first line of defence” against illegal content, Mr Evans said.

“The platforms themselves are supposed to have mechanisms available for people to flag content, illegal content or content that they think breaches their terms and conditions, to the attention of the platforms and there’s a process then the people can go through to get the content taken down. And what we’re here to do, is to make sure that all the platforms do that in a consistent, legal way.”

If reported content is not removed by a platform, users can appeal to Coimisiún na Meán: “In those kinds of situations, we will have to look and make a determination – is that content clearly illegal or not?”

The commission will have “sole responsibility” for dealing with complaints made against certain platforms headquartered here – although this does not include the likes of Facebook or X.

“There are other platforms which fall below a threshold of 45 million users in the US, and there’s quite a number of those based in Ireland as well, and we have responsibility, sole responsibility, for those ones,” Mr Evans said.

He said that if content online qualified as a “safety of life” issue, An Garda Síochána should be the first point of contact.

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