As governments around the world seek greater influence over the Web, the European Union has emerged as a model of legislative intervention, with efforts from GDPR to the Right to be Forgotten to new efforts to allow EU lawmakers to censor international criticism of themselves. GDPR has backfired spectacularly, stripping away the EU’s previous privacy protections and largely exempting the most dangerous and privacy-invading activities it was touted to address. Yet it is the EU’s efforts to project its censorship powers globally that present the greatest risk to the future of the Web and demonstrate just how little the EU actually understands about how the internet works.
The EU’s efforts to legislate its way to global internet censor have been in the news again this week with an advocate general opinion from the EU Court of Justice arguing that the EU should have the right to censor content globally. In reaching for the ability to control what citizens of other countries say outside EU borders, the EU risks setting an extraordinarily dangerous precedent that would permit the world’s repressive regimes to control global speech.
This week’s opinion is not the EU’s first foray into attempting to exercise the powers of global censor. Perhaps most famously, the EU has increasingly attempted to expand the impact of its so-called “Right to be Forgotten” protections to include the right to force search engines to remove content globally rather than only within the EU.
If the EU were able to force search engines in the United States to remove all content from their US search indexes that EU citizens wished removed, the EU would now have the ability to control what American citizens were able to see.
The problem with this power is that in our globalized world, the censorship rights that one country obtains are the censorship rights that all countries obtain.
If the EU were granted the legal right to forcibly remove American’s search engine access to content its citizenry disliked, China would also gain the legal right to forcibly remove search access by Americans to anything it disliked, including coverage of Tiananmen Square.
While the Right to be Forgotten applies narrowly to private citizens being permitted to remove selected content regarding themselves, its power comes from its enforcement by the governments of the EU. If a private citizen demands under the Right to be Forgotten that a search engine block access to certain content and the search engine refuses, the citizen can turn to the government to legally compel that request.
In short, the Right to be Forgotten is exercised by citizens but is enforced through powers held by the government to compel search engines to comply with those requests. Put another way, censorship power flows from government to the citizenry but ultimately rests with and is enforced by the government.
While those powers are today narrowly exercised on behalf of citizens, they are ultimately held by the government, which could over time seek to exercise them more broadly, especially turning to the courts for expansions relating to urgent national security matters.
Most importantly, once a government establishes international legal precedent, all governments worldwide have a basis upon which to require similar concessions.
The EU government may seek new international censorship powers to exercise on behalf of its own citizenry, but if it is successful, other governments that acquire such powers may exercise them instead on behalf of the state.
If the EU gains international censorship powers to use on behalf of its citizens, China, Russia, North Korea, Iran and other states would also gain international censorship powers to use on behalf of their own governments.
This would mean that China could force search engines to remove all references to Tiananmen Square globally, while Russia could demand that all content critical of its government be stripped from access within the EU.
Yet the EU’s focus on citizen requests establishes the precedent that the state’s interests need not be represented in a censorship request. In fact, a citizen’s removal request may nothing to do with their government at all.
Why does this matter?
It matters because in the hands of a repressive state it would afford them the right to censor conversation in other nations as a way to conduct information warfare and foreign influence.
Russia, for example, could utilize such powers to force search engines to remove any content critical of Brexit from within the EU, including that published by EU governments. Similarly, Russia could force search engines to remove within the EU any content that presents a positive image of NATO.
Once governments have the right to dictate what other countries are permitted to see and say, it is almost a given that some of those governments will turn to those powers to censor speech not only critical of themselves but to intervene in the domestic affairs of allies and adversaries alike.
If the EU can force search engines, social media companies and other Web companies in other countries to censor speech they disagree with, so too can China, Russia, North Korea, Iran censor speech in the EU they disagree with.
Today search engines and social platforms are able to resist such demands by pointing out that no nation has such powers. If the EU succeeds in its quest, however, it will be only a matter of time before Web companies are forced to offer those same powers to other nations.
This raises the question of why the EU believes it should pursue these powers even with the knowledge of how they will ultimately empower repressive governments to silence and suppress speech within the EU.
The EU must surely recognize that if it acquires the power to overrule the informational sovereignty of other nations it will similarly be ceding its own sovereignty and placing its own citizens at risk.
To gain greater insight into how the EU has weighed this tradeoff, the EU Commission was asked whether it would support China’s right to force search engines to remove all content related to Tiananmen Square from access within the EU, as well as Russia’s right to censor all content within the EU critical of its government. The Commission was also asked whether it would support Russia’s right to force search engines to remove all anti-Brexit content from access within the EU in order to skew public opinion right before a major vote or negotiation.
Finally, if the EU did not support these rights, the Commission was asked why it felt only the EU should have the right to remove content globally, while other nations should not be granted that right and why it believed this was a tractable request in a globalized world.
In case the Commission’s response might be that the Right to be Forgotten applied in the EU only to citizen requests, not state requests, it was noted that governments like China and Russia would be unlikely to limit their censorship powers exclusively to citizen requests and would be far more likely to wield those powers for state needs.
Unsurprisingly, despite this clarification, the EU Commission still responded by emphasizing that in its current form the Right to be Forgotten can only be exercised by individuals.
When it was again reminded that other governments might not limit their global censorship powers in this way, the Commission declined to comment further. Asked again whether irrespective of the EU’s definition of the Right to be Forgotten, if it would support these other states gaining such censorship powers, the Commission again declined to comment.
Put another way, the EU Commission sees its efforts to gain global censorship powers narrowly through its own needs without understanding that in a globalized world, the powers of one government over the Web become the powers of all governments over the Web.
The EU is not alone in its failure to understand how the modern Web functions, but the danger is that because of its misunderstanding of how the Web works and the technological and legal frameworks that make it operate, the EU is aggressively working towards granting the world’s repressive regimes the right to control the information landscape across the world.
Putting this all together, the EU’s failure to understand how the Web works and the unintended consequences of its actions reminds us about the grave dangers when non-technical politicians seek to regulate complex technologies in a globalized world.
In the end, the EU shows us once again how little it understands about the modern Web. Most importantly, it shows us that the end of free speech online will come not from the world’s dictatorships, but from the efforts of the EU.
