The Code of Conduct on Countering Illegal Hate Speech Online was originally agreed in May 2016 to prevent and counter the spread of illegal hate speech online and counts twelve signatories to date.
Hate speech is a crime under Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. The Framework Decision also applies to public incitement to violence or hatred manifesting online. The scope of the Code makes explicit reference to content deemed illegal as per national laws transposing the Framework Decision. The EU regulatory framework on countering illegal hate speech online has advanced with the entry into force of the DSA.
In order to ensure continued added value and complementarity with legal obligations under the DSA, the signatories to the Code have proposed on 29 April 2024 to the Commission a renewed set of commitments as part of a revised “Code of conduct on countering illegal hate speech online +” and requested the assessment of this Code under Article 45 of the DSA in June 2024. The DSA also mentions the Code in Recitals 62 and 87 as a benchmark on cooperation with trusted flaggers and on the review of notices for removal of illegal hate speech. Recital 106 of the DSA refers to the Code as one of the existing self-regulatory instruments that could become a code of conduct under the DSA.
Pursuant to Article 45(4) of the DSA “[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 document summarises the Board’s assessment. It is to be published alongside the ‘Commission Opinion on the assessment of the Code of Conduct on Countering Illegal Hate Speech Online + as a code of conduct under Article 45 of the DSA. This document does not prejudge any future actions the European Commission, the Board, the Digital Services Coordinators and other competent authorities, as applicable, may undertake in the enforcement of the DSA.
The Board notes positively that the Code of Conduct on Countering Illegal Hate Speech Online has been revised to take into account the new regulatory framework established by the Digital Services Act and to tackle an increasingly pressing problem in our societies. Hate speech may impact a number of fundamental rights (such as the freedom of expression, the rights of children or the right to a private life) and lead to major disruptions in societies by impacting civil discourse, political debates and election processes. In addition, it may produce chilling effects on the participation of vulnerable user groups in discussions on issues of public relevance. It is therefore positively noted that the Code appears to be a suitable instrument to prevent such manifestations in the online environment by contributing to reduce the virality of illegal hate speech including through voluntary commitments toward a rapid review and removal of such content.
Thereby, the Code engages with some types of systemic risks outlined in Article 34 of the DSA and can be a suitable instrument to successfully contribute to the proper application of the DSA. Further, it clearly sets out its specific objectives, contains key performance indicators (KPIs) to measure the achievement of those objectives, and takes due account of the needs and interests of all parties concerned.
The Board is therefore of the view that the Code of Conduct on Countering Illegal Hate Speech Online + meets the four criteria specified in Article 45(1) and (3) of the DSA for codes of conduct.
However, the Board would like to stress the importance of ensuring complementarity between the Code and the DSA in the sense that the former lays out more detailed - voluntary - commitments in relation to a specific, yet important type of illegal content, hate speech, without prejudice to the legal obligations laid down in the DSA. To this end, section 1 of this document clarifies the interplay between the two instruments in practical terms, in full recognition of the fact that the code must not impede effective enforcement and is without prejudice to any action taken by the Commission, the Board, Digital Services Coordinators and other competent authorities, as applicable, to that regard. The Board would further like to highlight a number of points to be taken into account in the implementation and future review of the Code. These are set out in section 2.
The Board firstly recalls that there is a clear hierarchy between the DSA as a regulatory instrument directly applicable in all Member States to intermediary services and the present Code, which sets out voluntary commitments by signatories when it comes to handling illegal hate speech as a specific type of illegal content. In this regard, as set out in the preamble to the Code, it is without prejudice to the obligations imposed on signatories under the DSA, which will always take precedence for signatories falling under its scope. In this context, the Board further recalls more specifically that the signatories are obliged to process any notices that they receive under the mechanisms referred to in Articles 16 and 22 in the manner specified therein, as acknowledged in commitments 2.1. and 2.2 of the Code, and to comply with Articles 9 and 10 of the DSA in regards to removal orders and orders to provide information, the obligation to notify of suspicions of criminal offences in accordance with Article 18 of the DSA and related obligations within the timeframe foreseen by the DSA.
Secondly, the Board recognises that the Code aims to be a complementary tool to the DSA. This is, for example, demonstrated by the system of reporting under the Code: the Code aims to gather “specific and proportionate information on how obligations are implemented with respect to illegal hate speech” (Preamble (h)). The alignment of reporting periods under the Code with those set out in the upcoming ‘Implementing Regulation on Transparency Reporting’ highlights how additional information is gathered: information on complementary code-based commitments is given simultaneously and in addition to what signatories are required to report under the DSA.
The Code commitments add a complementary, operational, layer on top of existing obligations pursuant to the DSA regarding illegal hate speech. The Board notes that the Code’s targeted focus on countering illegal hate speech is to be considered within the broader scope of the DSA, which also includes countering other types of illegal and harmful content to achieve the DSA’s goal of safeguarding a safe, predictable and trustworthy online environment.
The Board recognises that the Code’s objective to counter illegal hate speech online is necessary to address negative effects on the exercise of fundamental rights. At the same time, the Board notes that signatories must strike a balance between taking effective action to limit the spread and impact of illegal content online, and protecting fundamental rights, in particular the freedom of expression and information, when implementing measures to meet the Code’s relevant commitments as equally required by the DSA.
The Board notes that the system of ‘Monitoring Reporters’ pursuant to Annex 1 of the Code is to be understood as being complementary and without prejudice to the system of ‘Trusted Flaggers’ found in Article 22 of the DSA, which includes in particular the benefits granted to entities which have been awarded the status of Trusted Flaggers under the DSA, such as the obligation to ensure that notices submitted by them are given priority and are treated without undue delay. This is made explicit by the definitions of both actors provided in Annex 1 on the methodology for the Monitoring Exercise, which recognises that the status of Trusted Flagger is awarded according to the criteria set out in Article of the 22, i.e. by Digital Service Coordinators (DSCs) including according to the independence criterium, and that Monitoring Reporters can also be Trusted Flaggers as set out in Article 22 or take part in any relevant voluntary Signatory program. While acknowledging the positive implications of such voluntary programmes by signatories especially in highly context- and language specific fields such as hate speech, the Board notes however that such voluntary programs should not impede the independence of entities awarded the status of Trusted Flaggers in view of their independence requirements laid down in Article 22 of the DSA.
Furthermore, the Board emphasises that Monitoring Reporters pursue a specific role that has to be seen in the context of the implementation of the Code and the nature of the illegal content addressed. Importantly, the Board notes that the status and specific task of Monitoring Reporters is primarily linked to the annual Monitoring Exercise described under Annex 1 of the Code, which foresees a Monitoring Period of a maximum of 6 weeks each year. In contrast, the status of Trusted Flaggers pursuant to Article 22 of the DSA is awarded to notify illegal content on any online platform all year round. That status is by no means affected through the Code.
The Board further highlights that in the context of the commitments under point 5.2 of the Code (information about training, resources and support to Monitoring Reporters and civil society organisations), the independence requirements for Trusted Flaggers as stipulated in Article 22 of the DSA must be respected in all circumstances.