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EU Crackdown on Online Hate Speech Will Further Silence GC Women

Vague hate speech definitions, coupled with big fines from Brussels, may spur tech companies to censor risky posts

EU Crackdown on Online Hate Speech Will Further Silence GC Women
"Freedom of expression" by Harald Groven is licensed under CC BY-SA 2.0.

Politicians in Brussels have signed off on a new EU law that can inflict unprecedented penalties on tech companies that allow hate speech on their platforms. While moderation should be welcomed, the law leaves the definition of what constitutes a hate crime up to the countries themselves, and some EU countries have definitions that are broad or vague.

Such broad-ranging or unclear definitions of 'hate', coupled with the severity of the fines (up to 6% of annual turnover for the biggest tech giants) are likely, according to policy analysts, to encourage companies like Twitter and Meta to err on the side of caution and remove any content that could be misconstrued as hateful, thus further censoring certain social media users, particularly those that criticise gender ideology orthodoxies.

"r/SlapHerFace" stays up, but "groomer" is banned.

Tech companies claim they can self-regulate, but lawmakers have rightly found their moderation practices too lax. There is a proliferation of hateful content targeting women on platforms like Reddit, particularly, that the companies are happy to host. Yet gender critical speech is one topic that often comes under fire from trigger-happy moderators ready to suspend, temporarily or permanently, women who deadname trans-identifying people or even simply state biological reality. Reddit even recently banned the use of the word "groomer" claiming it is being used by anti-LGBTQI commentators to associate those communities with paedophilia.

The example of Ireland: good intentions likely to have undemocratic consequences

A report by the European think tank IIEA suggests that the new law, which is part of a mammoth new legal instrument called the Digital Services Act (DSA), and which also covers illegal goods and services sold online, poses a risk to “legitimate, non-hateful content”. Using Ireland’s proposed Hate Crimes Bill as an example, the report lays out the effect the double-whammy of EU and national legislation will likely have on freedom of expression.

Apart from intentionally hateful posts, the Irish bill would criminalise being reckless as to whether such communication will incite hatred against another person or group of people due to their real or perceived association with a protected characteristic (including gender), says the report.

Recklessness, used here, means a person must at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to hit 'publish' anyway. What this means in practice is that if a blog post or tweet is “significantly likely” to incite hatred, they are committing a crime, regardless of their intention.

Intent no longer matters

Thus any communication could be hateful, because any comments about a protected group could stir hatred in an intolerant person. In the most recent draft of the bill, “reckless” incitement to hatred also applies to people who might only be associated with a protected group, such as trans rights activist groups.

The Irish justice ministry wrote on 13 July that the minister in charge of the new bill now intends to add a ‘demonstration test’ to hate crimes investigations (on top of the motivation test). According to the press release, "A motivation test for hate crime requires proof of someone’s subjective motivation for committing an offence - what was in their mind at that exact moment. However, the Minister has now concluded that motivation alone in proving hate crime offences can be difficult to establish and therefore might not result in a conviction. A demonstration test means simply that a perpetrator demonstrates hatred towards a member of a protected group/characteristic at the time of an offence being committed."

Nobody flagging the flaggers

The EU law also requires each country to put in place an organisation “dedicated to reporting material that should be removed,” says the IIEA report (i.e. they have to set up a team of trusted flaggers). Individual users can contest the removal of their content, but there is no equivalent body mandated by the legislation of trusted flaggers to judge wrongfully removed content.

This means that tech companies are likely to remove even ambiguously 'hateful' but legitimate speech in order to avoid significant fines and time-consuming moderation practices.

An account run by a supporter of British feminist Kellie Jay Keen and that of poet Aja were recently suspended (though later restored), though other suspensions were never lifted, such as those of Graham Linehan and Meghan Murphy, among others.

Just ten days after Brussels' triumphant announcement of this scheme to 'clean up' the internet, on 15 July, the European Commission decided to sue Victor Orban's Hungarian government over a 2021 law that bans the use of materials seen as promoting homosexuality and gender change in schools. One of the reasons given is that it violates the fundamental right to freedom of expression, and important European value.

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