Treating terrorism propaganda as uniquely dangerously speech: the EU’s shift from voluntary to compulsory notice and takedown procedures and its implications for freedom of speech

Europe is rapidly moving from primary reliance on criminal law for dealing with online ‘extreme speech’ towards use of notice-and-takedown procedures, as under the EU’s ‘voluntary’ Hate Speech Code and German NetzDG law. The scale of these operations dwarfs the small number of prosecutions in European states, while their lightning-quick operation (often within 24 hours) make the criminal justice system look impossibly ponderous. The new Regulation on tackling terrorism content moves the EU to a compulsory system, backed by heavy fines. This paper argues that the EU approach indiscriminately catches wholly different types of ‘terrorism-related material’ that in speech terms have wildly different value and gives only rhetorical protection to free speech. But it challenges the notion that the Regulation is simply a retrograde step in civil liberties terms, contending that transparency, due process, access to legal speech rights and possibilities for legal challenge may all be enhanced.