Although this happened last week I only learned about it today. The EU order is based upon a Lumen Database archive. I searched from France and Belgium with a VPN. Google provides the justification.
While I am appalled at Putin’s attack on Ukraine, I understand that information warfare is an important part of this war. However, it is one in which the EU does not officially participate. The European public cannot see all sides’ views, which is why it can’t get an accurate picture. This makes it difficult for them to decide what they think or do regarding the European response to the invasion. Even the Kremlin lies reveal something about its views and attitude. Plus, the entire site is blocked including long-ago archives as well as other material that wasn’t included in the information war. It might also be worthwhile to see if this will lead to similar pressures to remove content from countries being accused of misconduct, such as China and Israel.
In any case, I welcome all opinions on the topic. Below is a response from a colleague who was contacted by me after I asked for help with a question about the law professor discussion lists.
Let’s see what you want:
Fri, March 4, 2022, 06:57
In behalf of, I send you the email below [redacted]To clarify the sanctions and to follow up on any questions,
We appreciate your understanding. [redacted]
Disclaimer:This is an informal position that does not make the Commission obligated. It is intended for judges at the national level and, ultimately, the European Court of Justice who will interpret Union law.
Internet search services
The Regulation is intended to contain a broad, comprehensive prohibition. Operators are those that provide search engines on the Internet. Both broadcasting, which is an extremely broad term in the Regulation, and operators that “enable or facilitate broadcasting” are prohibited. This Regulation covers “including via transmission or distribution through any means, such as cable, satellite or IP-TV. Internet service providers, online video-sharing platforms and applications. In addition, the Regulation contains a broad anti-circumvention clause. The Regulation’s prohibition is broadened to meet its purpose. RT and Sputnik, in particular, have gravely distorted, manipulated and targeted European parties and civil society (recital 6); Russia has been engaging in coordinated propaganda activities targeting civil society within the Union (recital 7).
Search engines such as Google are designed to index results containing any possible content; they index websites throughout the world; the information is indexed by their ‘web crawlers’ or robots, that is to say, computer programmes used to locate and sweep up the content of web pages methodically and automatically (see by analogy judgment of the ECJ in Google Spain, C‑131/12, para. 43). The activity of search engines plays a decisive role in the overall dissemination of content in that it renders the latter accessible to any internet user making a search on the basis of the content indication or related terms, including to internet users who otherwise would not have found the web page on which that content is published (see by analogy judgment of the ECJ in Google Spain, C‑131/12, para. 36). Consequently, search engines like Google would not remove RT or Sputnik from their indexes. They could facilitate public access to RT/Sputnik content, and even contribute to it.
As a result of this Regulation, Internet search service providers must ensure that i. no link to the Internet site of RT/Sputnik or ii. all content of RT/Sputnik (including short text descriptions and links to the corresponding sites) are not included in searches delivered to EU-based users.
The Regulation will contain a wide-ranging and complete prohibition. They are also operators, and offer services to users. Both broadcasting, which is an extremely broad term in the Regulation, and operators who “enable or facilitate broadcast” are prohibited. The Regulation covers “included transmission or distribution through any means, such as cable, satellite or IP-TV. Internet service providers, online video-sharing platforms and applications. Additionally, the circumvention clause uses broad language. The Regulation’s objective, to address the fact that RT/Sputnik have gravely distorted, manipulated and targeted European political parties (recital 6); Russia has been engaging in ongoing and coordinated propaganda activities targeting civil society in the Union (recital 7).
The above explains why social media users must not broadcast (lato sensu), any content from RT or Sputnik. This applies to both accounts that appear to belong to people who could be used by RT/Sputnik as well as to other individuals. Social media accounts which are either formally owned or de facto associated with RT or Sputnik must also be removed. This is because the account violates paragraph 1 of the RT/Sputnik Act and falls under “distribution agreement”.
Individuals who post content from RT or Sputnik must not publish them. If published they should be removed. The Regulation must be interpreted in accordance with both the principle of proportionality as well as the fundamental right of freedom of expression. In practice, this line may be more difficult than it seems in some cases. While social media platforms are under stress, that tension is balanced by the Art. 15 E-commerce Directive.
The decision to withdraw in full from the Ecommerce Directive was made conscious and was justified by the temporary nature of the current situation.
Media reporting about the sanctions should not use the contents
The freedom of speech gives media the right to provide objective reporting on current affairs and express their views. Freedom of speech means that all users are entitled to objective information regarding current affairs. The right to free expression can also be restrained in proportionately for the legitimate public good.
Russia Today or Sputnik may report on the Regulation’s consequences by providing the content. It may also refer to news pieces by RT or Sputnik to show the types of information they provide. This is done in an effort to inform their viewers/viewers accurately and fully. It is against the Regulation’s rights to freedom of speech that other media outlets use to avoid it: Article 12 says “It shall not be permitted to participate, knowingly, or deliberately, in activities whose object or effect is to violate prohibitions contained in this Regulation.” It is illegal for another media outlet to claim to provide information to viewers/readers but instead broadcast Russia Today or Sputink material to the public.
Below is Prof. Neil Netanel (UCLA Law)’s reaction:
It is clear that the European Council regulation applies only to Internet services. This makes perfect sense. Not only does the regulation mention the RT/Sputnik disinformation campaign about Ukraine but also the repeated, consistent dissemination by RT and Sputnik of hate speech and propagandistic material targeting democratic institutions in Europe and the Member States as well as propaganda aimed to destabilize EU countries bordering Ukraine.
This regulation expresses Europe’s post-WWII, “militant democracy”, understanding of constitutional governance. It requires that democratic countries balance the rights to free expression and association with the necessity for democracy to protect itself against those who abuse democratic freedoms in order to weaken democracy. Sputnik and RT have used Internet services to subvert democracy in Europe.
It does not seem that the regulation prohibits critical analysis, which includes excerpts from RT and Sputnik feed. However, it should not be used as a disguised substitute for RT.