Report on the DSA Observatory & IViR expert roundtable of 18 March 2022
Ilaria Buri, Isabel Lereno Monteiro Guedes and Lucas Balluff
In reaction to the Russian invasion of Ukraine, on March 1st 2022, the Council of the EU passed a series of measures targeting the dissemination of Russian media outlets Russia Today (RT) and Sputnik in the European Union. The Council’s measures are based on the premise that “in order to justify and support its aggression against Ukraine, 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”, and that certain outlets, “under the permanent direct or indirect control of the leadership of the Russian Federation”, are essential in promoting these propaganda initiatives.
The Decision and the Regulation adopted by the Council – announced the day before by the President of the European Commission – amend existing EU sanctions imposed on Russia in 2014 following Russia’s destabilizing actions against Ukraine. More specifically, the Council’ measures impose a prohibition for operators “to broadcast or to enable, facilitate or otherwise contribute to broadcast”, any content by RT English, RT UK, RT Germany, RT France, RT Spanish 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.” The measure has been interpreted broadly by EU and national regulators, and has led to blocking of websites by Internet Service Providers, removal of content by social media and removal of links by search engines.
The restrictions, declared “[c]onsistent with the fundamental rights and freedoms recognised in the Charter of Fundamental Rights, in particular with the right to freedom of expression and information”, are to remain in force until the end of the Russian aggression on Ukraine, and in any case until “until the Russian Federation, and its associated media outlets, cease to conduct propaganda actions against the Union and its Member States”.
These measures raise important questions from the perspective of media law and fundamental rights protection in Europe. First, it has been questioned whether the EU has the competence to impose these restrictions on broadcasting and broader internet media dissemination. Second, the extended interpretation given to the scope of these measures, to include social media activity of end-users sharing RT and Sputnik materials, and references in search engines, poses questions around a possible breach of the prohibition of general monitoring set forth by Article 15 ECD and re-stated under the DSA proposal. Third, as these measures amount to a prior restraint, it is far from straightforward whether they are strictly necessary in a democratic society, and therefore compatible with the fundamental right to freedom of expression. Fourth, additional (complex) questions revolve around the broader EU policy on disinformation – which for a long time has been confronted with Russian state propaganda through these media operations – and possible remedies under the upcoming DSA. Further issues concern the measures available to the EU to support democratic media and journalism, in Europe and abroad.
These (and other) questions were explored in a roundtable organized by the DSA Observatory at the Institute for Information Law (IViR) at the University of Amsterdam, which took place online 18 March. The event gathered over 70 experts from different domains, including academia, EU institutions, civil society organizations, national regulators and international organizations.
In terms of underlying legal issues, questions of legal basis, competences and compatibility with fundamental rights were directly addressed in the opening remarks, and remained central throughout the entire discussion. It was pointed out that the issuing of licenses, which is governed by a regime that seeks to protect diversity, falls under the competence of the Member States. As a consequence, it should be argued that the revoking of such licenses should also be a Member State’s – and not Union’s – competence. The German media regulator, for instance, was already prohibiting the broadcast of RT in Germany, on the ground of a lack of a valid license.
This general scheme of competences has not been affected by Article 215 TFEU on Council’s decisions concerning restrictive measures against third countries, natural or legal persons and groups or non-State entities. In any case, even where such EU competence existed, it is clear that the EU institutions are still bound by fundamental rights – namely freedom of communication and freedom to receive information – when adopting such sanctions.
A critical point made in the discussion concerns a “legitimate interest” of EU citizens in accessing Russian propaganda, and to understand what it is about and which arguments are used. In Germany, for instance, the “freedom to receive information” is a right on its own, and the opportunity to introduce such an autonomous right was highlighted by a pre-existing prohibition to listen to foreign propaganda.
Particularly in situations of crisis, it is crucial to understand the real risk that we face in order to assess the proportionality of any restrictive measure. Notably, risks posed by certain media may vary throughout the Member States. In EU eastern countries bordering with Ukraine, for example, emergency measures under the Audiovisual Media Services Directive were already under way. This seems to indicate that the system already in place can offer remedies, and at the same time questions the need for the additional Council’s measures, which were adopted and became effective directly after the Commission’s announcement, without any waiting period.
The discussion also considered the work being carried out by European Regulators Group for Audiovisual Media Services’s (ERGA) subgroup on disinformation. The subgroup intends to be a hub for sharing experiences and best practices related to monitoring and analysing the media environment with a special focus on disinformation narratives from foreign actors and information manipulation related to the current developments in Ukraine.
Within this scope, the subgroup has closely monitored the implementation of the recent measures in each Member State. In most Member State, for instance in the Netherlands, the Russian state-controlled media outlets were not being offered by most cable operators nor satellite providers even prior to the sanctions. Those that did broadcast those channels have since adhered to the Council’s decision, with the notable exception of active satellites controlled by companies not subject to EU jurisdiction (including Russian ones). The subgroup has also determined that most Internet Service Providers have blocked the RT and Sputnik’s websites. This action followed the statement on the 11th of March from the Body of European Regulators for electronic communication (BEREC) which reiterated that the Council’s Regulation was a legal act falling within the scope of the exceptions in Article 3(3) of the Open Internet Regulation. In this regard, the roundtable discussed whether blocking measures such as the ones adopted by the Council should be endorsed as a possible tool in the fight against disinformation. Blocking measures are generally regarded as a last resort only justified to fight incitement to hatred, violence, and other illegal content, while disinformation (i.e., legal but harmful content) is, in fact, a much greyer area.
Moreover, the discussion considered the Council’s measures in the context of the broader international human rights framework, and specifically Articles 19 and 20 of the International Covenants on Civil and Political Rights (ICCPR). While Article 19 relates to freedom of expression, Article 20 establishes that propaganda for war must be prohibited by law. As such, the ICCPR recognise that the freedom of the media might be limited in times of war. It should be noted, nevertheless, that the same express prohibition for war propaganda is not established within the EU legal framework.
Historical research on the public policy considerations surrounding the drafting of Articles 19 and 20 ICCPR show that, at the time, there was a strong condemnation of propaganda for war, and an almost universal agreement on the dangers posed by this tool. While these considerations have somehow faded over time, there is no doubt that Article 20 pecifically prohibits war propaganda.
Therefore, while freedom of expression is hugely important in a democratic society, it possibly shouldn’t be an obstacle to some of the policy considerations underlying the Council’s measures in relation to RT and Sputnik. The drafters of the ICCPR initially included as a limitation to freedom of expression “the systematic diffusion of deliberately false distorted reports that undermine friendly coexistence and relations between people and states”. While this limitation was ultimately not included, it seems to suggest that, under specific circumstances, certain forms of disinformation could coincide with propaganda for war.
Thus, on the one hand, it can be argued that there is a genuine threat that calls for exceptional measures and an unprecedented sense of urgency; on the other hand, the restrictive measures introduced by the Council’s Regulation still pose a significant risk as to the precedent that might be set.
Questions relating to the proportionality of the ban on RT and Sputnik took center stage in the roundtable discussion. Significant doubts were raised about the procedural safeguards included in these restrictive measures, such as their temporal scope and legal basis, which have an impact on whether the sanction regime complies with fundamental rights rules under EU and international law. Specifically, the measures are to be in force until the halting of the Russian aggression and until the end of Russian propaganda by the affiliated news outlets (Recital 10 of both the Council Regulation and Decision). Moreover, the Council Regulation relies heavily on open and abstract concepts, such as “misinformation” and “disinformation,” which currently lack a common definition and understanding.
Beyond this, it was noted that the assessment around the proportionality of the restrictive measures may vary significantly across different Member States. The ban could seem more justified from the perspective of a Member State bordering or in the vicinity of Ukraine, while the proportionality of the restrictions would be more questionable in a Member State in Western Europe. Hence, there were suggestions that the focus of Union action should be on cooperation between national regulators regarding content from RT and Sputnik (and other relevant sources) rather than on a Union-wide ban. That option would be more consistent with the fact that media law is considered a Member State competence and that any Union action must reflect national and regional diversity.
The question of how the ECtHR or the EU Courts would assess the proportionality of the measure in respect of Article 20 ICCPR was a further point of interest. Although there are Member States (for example The Netherlands) which never accepted the provision and others had reservations, the question remains open as to whether Article 20 ICCPR will have an impact on the proportionality assessment of the measures adopted against RT and Sputnik. An important point that was put forward in this respect was that although RT has appealed the Regulation, RT and Sputnik may not be able to invoke Article 10 of the European Convention on Human Rights (ECHR) as they could be considered similar to state agencies. On the other hand, private parties may rely on their right to access information and invoke the applicability of Article 10 ECHR.
A parallel was drawn between the Council’s restrictive measures and the restrictions on radio and tv broadcasting adopted in Northern Ireland during the Troubles, which aimed at denying terrorists “the oxygen of publicity.” Contrary to the initial intention, those bans acted as a catalyst for the interest of the public in the arguments of the other party and were eventually scrapped to help advance peace talks. While there are good reasons to deny RT and Sputnik the ”oxygen of publicity’’, and the general consensus was that something needed to be done, there are major doubts on whether the Council Regulation responded to this need in the most appropriate and fundamental rights-compliant way. This concern is furthered by the informal political pressure put on social media platforms to delist both RT and Sputnik, going as far as requiring the platforms to delete screenshots posted by individuals which reproduces content from RT and Sputnik. This form of shadow regulation contributes to making these platforms opaque instruments of political intervention, without sufficient guarantees in terms of due diligence and accountability. This is especially so where the platforms are being pressured by the same body that regulates them, both at national or at EU level.
The event’s concluding remarks stressed that the proportionality of the RT/Sputnik ban can be challenged in the Courts, which may have to answer important questions related to the right to receive information versus the prohibition of war propaganda. It is essential to highlight that the Council’s measures should not be allowed to create a precedent, particularly where procedural safeguards will be deemed insufficient. Moreover, the ban has once again shown the huge power of private actors in this space, leading to questions around the implications of future regulation for such actors and their role in safeguarding fundamental rights and the delicate balance between freedom of expression and the fight against (specific forms of) disinformation.
Furthermore, the RT/Sputnik ban may act as a good stress test for upcoming regulatory initiatives including the Digital Services Act (DSA) and the Media Freedom Act in that it tests the limit of the Union’s ability to act within the scope of media law. Although the DSA would not offer a legal basis for initiatives such as the Council Regulation in question, it would play a role in regulating illegal content such as propaganda (although disinformation is considered harmful content, it is not per se illegal and is only governed through the relevant platforms’ terms and conditions). The debate also invited reflections on EU media outlets which adopt a rhetoric similar to that of RT and Sputnik (it is the case, for example, of some Hungarian media).
In conclusion, in light of the current circumstances, an open and democratic debate on how to balance swift political decision-making with the protection of fundamental rights appears more urgent than ever. These questions have certainly become more prominent in the ongoing DSA trilogues, where the co-legislators are considering complementing the voluntary crisis protocols currently envisaged in the proposal with a response mechanism aimed to address extraordinary crises.
The following speakers opened our conversation with some opening remarks.
- Wolfgang Schulz, Research Director, HIIG; Director, Hans-Bredow-Institut;
- Marcel Betzel, Policy Advisor, Dutch Media Authority (Commissariaat voor de Media);
- Tarlach McGonagle, Associate Professor, IViR; Professor of Law, University of Leiden;
- Kate Jones, Associate Fellow, Chatham House.
The session was chaired by Joris van Hoboken (Associate Professor, IViR, University of Amsterdam; Professor of Law, VUB) and Natali Helberger (Distinguished University Professor of Law and Digital Technology, with a special focus on AI, University of Amsterdam).
The authors of this report are Ilaria Buri (Research Fellow at the DSA Observatory, IViR; University of Amsterdam), Isabel Lereno Monteiro Guedes and Lucas Balluff.
Lucas completed his LLB Law degree at the University of Warwick. Isabel graduated in law in Portugal and concluded a master program in Business and Law. They are both Competition Law LLM candidates at the University Of Amsterdam and will be research interns at the DSA Observatory later in 2022.