COMMISSION OPINION of 20.1.2025 on the assessment of the Code of conduct on countering illegal hate speech online + within the meaning of Article 45 of Regulation 2022/2065
(1) The Code of conduct on countering illegal hate speech online, originally agreed in May 2016 (‘the 2016 Code of Conduct’) by the providers of Facebook, Twitter (currently X) and YouTube and by Microsoft, is aimed at preventing and countering the spread of illegal hate speech online. An additional eight signatories joined the 2016 Code of Conduct in the years that followed. At the time of this Opinion, the 2016 Code of Conduct counts 12 signatories. To date, seven of them are providers of online platforms designated by the Commission as very large online platforms (‘VLOPs’): Facebook, Instagram, LinkedIn, Snapchat, TikTok, X, YouTube. Other signatories are the providers of Dailymotion, Twitch, Rakuten Viber, Jeuxvideo.com and Microsoft.
(2) On 29 April 2024, the signatories to the 2016 Code of Conduct proposed a renewed set of commitments as part of a revised “Code of conduct on countering illegal hate speech online +” (hereafter “the Code”). In June 2024, those signatories informed the Commission of their willingness to have the Code assessed under Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC.
(3) Pursuant to Article 45(1) of Regulation (EU) 2022/2065, “the Commission and the European Board for Digital Services [hereinafter ‘the Board’] shall encourage and facilitate the drawing up of voluntary codes of conduct at Union level to contribute to the proper application of this Regulation, taking into account in particular the specific challenges of tackling different types of illegal content and systemic risks […]”. Article 45(3) of Regulation (EU) 2022/2065 provides that: “[t]he Commission and the Board shall aim to ensure that the codes of conduct clearly set out their specific objectives, contain key performance indicators to measure the achievement of those objectives and take due account of the needs and interests of all interested parties, and in particular citizens, at Union level”. Under Article 45(4) of Regulation (EU) 2022/2065 “[t]he Commission and the Board shall assess whether the codes of conduct meet the aims specified in Article 45 paragraphs 1 and 3”. This Opinion sets out the assessment by the Commission. The assessment made by the Board is published separately.
(4) Codes of conduct play an important role in the wider system of enforcement of Regulation (EU) 2022/2065, contributing to its application. While they remain voluntary, providers of VLOPs and of very large online search engines (‘VLOSEs’) may adhere to commitments made in such Codes as a means of fulfilling their obligation to put in place reasonable, proportionate and effective mitigation measures, pursuant to Article 35 of Regulation (EU) 2022/2065. This is without prejudice to the assessment by the Commission as to the appropriateness of such commitments to mitigate the risks identified under Article 34 which will be carried out on a case-by-case basis.
(5) Under Council Framework Decision 2008/913/JHA, Member States must ensure that public incitement to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin (hereafter: ‘illegal hate speech’) is punishable under their national legislation. This Framework Decision also applies to public incitement to violence or hatred manifesting itself online. The scope of the 2016 Code of conduct makes explicit reference to content deemed illegal as per national laws transposing the Framework Decision. In addition, according to Directive 2024/1385 on combating violence against women and domestic violence, Member States shall ensure that intentionally inciting violence or hatred directed against a group of persons or a member of such a group, defined by reference to gender, by publicly disseminating, by means of ICT, material containing such incitement is punishable as a criminal offence.
(6) While Regulation (EU) 2022/2065 provides a robust legal framework for countering illegal hate speech online, some of the voluntary commitments contained in the 2016 Code of Conduct have inspired new obligations under the Regulation (EU) 2022/2065 (see point (23) below). The 2016 Code of Conduct is cited in Regulation (EU) 2022/2065 in relation to processing notifications for removal of illegal hate speech online, and is listed as one of the existing self-regulatory instruments.
(7) The Code takes the form of five commitments and two annexes. Commitment 1 calls for clear terms and conditions that inform users about the policies and measures to address illegal hate speech online. Under Commitment 2 each signatory undertakes to review within 24 hours the majority (at least 50%) of hate speech notices received under Articles 16 and 22 of Regulation (EU) 2022/2065 from so-called ‘monitoring reporters’. According to commitment 3, each signatory undertakes to assess the adherence to the specific commitments on the review of notices and to monitor trends over time, following the methodology in Annex 1, and to provide additional information accompanying the results of each monitoring exercise referred to in Annex 2. Under commitment 4, signatories agree to participate in a multi-stakeholder framework for cooperation and information exchange (involving in particular the signatories and civil society organisations) and to participate in regular exchange fora. Under commitment 5, signatories agree to continue supporting tools and approaches on counter- and alternative narratives, new ideas and initiatives as well as educational programmes and to employ their best efforts to provide information about training, resources and support regarding best practices and how to use online platforms for delivering educational and awareness raising campaigns.
(8) Annex 1 outlines the methodology for the annual monitoring exercise under the Code, whereby monitoring reporters report alleged illegal hate speech online content through designated reporting processes for a period of maximum six weeks (30 working days). Detailed figures about the data points are published in a report within three months following the end of the monitoring period. The targets are those found in commitment 2 of the Code.
(9) Annex 2 lists key performance indicators as well as additional qualitative and quantitative information accompanying the result of each monitoring exercise that signatories commit to report in line with commitment 3 of the Code. These follow the five main commitments and their sub-elements under the Code.
(10) Pursuant to Article 45(4) of Regulation (EU) 2022/2065, the Commission’s assessment of a particular code of conduct aims at verifying whether the conditions set out in Article 45(1) and (3) of that Regulation are fulfilled, that is whether:
(a) the code contributes to the proper application of the Regulation, taking into account in particular the specific challenges of tackling different types of illegal content and systemic risks, in accordance with Union law in particular on competition and the protection of personal data (Article 45(1));
(b) the code clearly sets out its specific objectives (Article 45(3));
(c) the code contains key performance indicators to measure the achievement of those objectives (Article 45(3)); and
(d) the code takes due account of the needs and interests of all interested parties, and in particular citizens, at Union level (Article 45(3)).
(11) The fulfilment of the aforementioned conditions should ensure that codes of conduct (i) clearly define the nature of the public interest objectives being addressed; (ii) contain mechanisms for independent evaluation of the achievement of their objectives; and (iii) clearly define the role of relevant authorities. Recital 103 of Regulation (EU) 2022/2065 indicates that particular attention should be paid to avoiding negative effects on security, the protection of privacy and personal data, as well as to the prohibition on imposing general monitoring obligations on the providers of intermediary services. While the implementation of codes of conduct should be measurable and subject to public oversight, this should not impair the voluntary nature of such codes and the freedom of interested parties to decide whether to participate.
(12) The compliance with commitments undertaken pursuant to the codes of conduct referred to in Articles 45, by providers of VLOPs and VLOSEs is subject to the independent audit obligations set out in Article 37(1)(b) of Regulation (EU) 2022/2065 and in Commission Delegated Regulation (EU) 2024/436. Compliance with code commitments is also monitored by VLOPs’ and VLOSEs’ compliance officers under Article 41(3)(f) of Regulation (EU) 2022/2065. Since such codes involve stakeholders, the Commission and the Board, they can provide all parties with an opportunity to engage in a critical discussion of evidence and a forum for continuous engagement that complements Regulation (EU) 2022/2065 and regulatory enforcement. For this reason adherence to and compliance with a given code of conduct by a provider of VLOP or VLOSE may be considered as an appropriate risk mitigating measure under Article 35 of Regulation (EU) 2022/2065 (Article 35(1)(h)). However, it is important to note that the mere fact of participating in and implementing a given code of conduct should not in itself be a basis to presume compliance with the Regulation (EU) 2022/2065. As noted in Preamble (g) of the Code, DSA obligations take legal precedence over voluntary code commitments. This opinion does not prejudge any future action that the European Commission, the Board, any of the Digital Services Coordinators, and other competent authorities, as applicable, may undertake in the enforcement of Regulation (EU) 2022/2065.
(13) According to Article 45(1) of Regulation (EU) 2022/2065, the goal of a code of conduct should be “to contribute to the proper application of this Regulation, taking into account in particular the specific challenges of tackling different types of illegal content and systemic risks, in accordance with Union law, in particular on competition and the protection of personal data”.