Written by Polona Car and Beatrix Immenkamp.
Differences between the United States (US) and the European Union (EU) over the regulation of online platforms have taken on a new dimension under the Trump administration. Senior members of the US administration have strongly criticised the EU for ‘limiting free speech’ and have called the EU’s content moderation law ‘incompatible with America’s free speech tradition’. Much of the debate is informed by misconceptions and misunderstandings.
The differences between the US and EU hate speech regimes are striking, largely for historical reasons. The First Amendment to the US Constitution provides almost absolute protection to freedom of expression. By contrast, European and EU law curtails the right to freedom of expression. Article 10 of the European Convention of Human Rights, which applies to all EU Member States, states that freedom of expressions ‘carries with it duties and responsibilities’. In a democratic society, restrictions may be imposed in the interest, among others, ‘of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others’. EU legislation criminalises hate speech that publicly incites to violence or hatred and targets a set of protected characteristics: race, colour, religion, descent or national or ethnic origin. Even though legislation in EU Member States varies widely, many have extended protection from hate speech to additional characteristics.
In light of the exponential growth of the internet and the use of social media, the debate about hate speech has essentially become about regulating social media companies. The focus has been on the question of whether and to what extent service providers are responsible for removing hate speech published on social media platforms. The US has opted not to impose any obligation on social media companies to remove content created by third parties, merely granting them the right to restrict access to certain material deemed to be ‘obscene’ or ‘otherwise objectionable’. By contrast, the EU has adopted regulation that obliges companies to remove offensive content created by third parties, including hate speech, once it is brought to their attention. Social media companies also self-regulate, by adopting community guidelines that allow users to flag hate speech and ask for its removal.
Read the complete briefing on ‘Hate speech: Comparing the US and EU approaches‘ in the Think Tank pages of the European Parliament.
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