Governments across Europe regularly invoke the threat of terrorism to limit freedom of expression beyond what is permitted under international law. Journalists, activists and ordinary social media users are subject to arbitrary restrictions in relation to their online expression. There is little evidence of the success of such restrictions in preventing terrorist attacks, while their chilling effect on freedom of expression is widely documented.
And yet terrorism remains a very real threat, both in Europe and globally. Terrorist attacks, of various ideological, political or religious motivations, have increased across Europe over the past decade. This has been accompanied by violent groups’, notably ISIS and violent far right movements’, increasingly professional and strategic exploitation of social media networks in order to recruit and radicalise. Radicalisation, particularly online, poses an evolving threat to societies, warranting some form of governmental response. This article explores why overly broad terrorist legislation is so problematic and explores alternative approaches to effectively tackle terrorist threats, while respecting the right to freedom of expression and other associated rights.
Abuse of counterterrorism legislation
In December last year, Dunja Mijatović, Commissioner of Human Rights at the Council of Europe, published an article describing the misuse of anti-terrorism legislation as one of the greatest threats to freedom of expression in Europe.
In Turkey, for example, an estimated 175 journalists have been arrested following the July 2016 coup attempt. Many face charges of affiliation with, membership of, or propaganda for a terrorist organisation; however, independent trial monitors, myself included, have documented the almost total lack of evidence in such cases. The cases rely almost solely on articles written by defendants, or posts on social media, which contain no calls to, or apologies for, violent acts.
Mijatović identifies ‘vague or unduly broad’ definitions, such as ‘glorification’ or ‘propaganda’ to terrorism as particularly problematic. These have proliferated across Europe, targeting musicians, activists and ordinary citizens, particularly those expressing themselves on social media. For example in 2017, a Spanish court sentenced student Vera Cassandra to a one year suspended sentenced for ‘glorification’ of terrorism’ (Article 578 of the Spanish Penal Code) in relation a series of tweets she sent, joking about a Franco-era Minister, killed in an ETA terrorist attack.
Meanwhile, at the European Union level, the European Commission has proposed a new Regulation on preventing the dissemination of terrorist content online. The inclusion of vague and broad definitions of ‘terrorist content’ have been sharply criticised by freedom of expression advocates as potentially enabling the arbitrary removal of content, particularly that produced by human rights defenders, independent media and minority groups.
International human rights law is clear that, in very limited circumstances, the right to freedom of expression may be restricted in order to ensure national security and prevent terrorism. However, any legislation must be precisely formulated, to avoid broad or abusive application, and strictly necessary for the purposes of national security. In practice, this means that, when imposing any sanction against terrorist speech, a court must demonstrate that the expression is intended to incite imminent violence; it is likely to incite such violence; and there is a direct and immediate connection between the expression and the likelihood of violence.
International human rights standards maintain that offensive, shocking or disturbing speech must be permitted. When states prosecute such expression, or invoke anti-terror legislation to silence criticism, they make our societies poorer, limiting dialogue and obstructing pluralism and diversity. Moreover, unfounded restrictions seed distrust towards authorities, delegitimising efforts to prevent genuine incitement to violence.
Beyond restrictions on expression
This does not mean there is no role for government in responding to terrorist speech. In May 2017, the UN Security Council adopted Resolution 2354, urging UN Member States to support positive and credible alternatives to audiences vulnerable to extremist messages.
Counter narratives have also been advanced as a solution to offensive, shocking or extremist speech, where it doesn’t meet the threshold of severity that would warrant a restriction.  Such expression, which might also be called ‘hate speech’, does not pose a direct threat to national security; however, it raises serious concerns about societal cohesion and may undermine others’ enjoyment of rights, particularly the right to equality and non-discrimination. It is entirely legitimate that a government, and indeed broader society, would challenge such expression through non-coercive and non-restrictive approaches.
Aimed at discrediting and deconstructing terrorist and/or extremist messaging, counter and alternative narratives providing alternative viewpoints that promote democratic values and human rights. The underlying theory, that compelling positive speech will win out against terrorist or extremist narratives, is appealing. However, in reality, counter narratives vary in quality, often struggling to secure sufficient funding to produce content of the same quality of the propaganda that they are trying to debunk. Moreover, there is a myriad of challenges in reaching a vulnerable audience at risk of consuming violent extremist content with credible counter narratives; and a high risk that, in targeting the wrong people, or deploying off-message content, you actually exacerbate the problem.
Methodologies such as Google Jigsaw’s Redirect Method, which uses Google Adwords targeting tools to connect at-risk individuals with online counter narratives, may help tackle this problem. As pressure grows on social media companies to respond to the growth of extremist content on their platforms, we will likely see ever more complex technological solutions to content moderation. However, it seems likely that both tech companies and governments may need some persuasion to adopt transparent tools for responding to online terrorist content that adhere to international human rights standards. Civil society, particularly freedom of expression advocates concerned by the over-removal of content, can play a further valuable role in advocating for governments and businesses to adopt and support human rights compliant that promote online counter narratives, over the cruder method of content removal.
Finally, much radicalisation occurs offline; therefore, efforts to prevent radicalisation must also operate offline. Academics and experts have advanced various theories on the drivers of radicalisation, including socio-economic exclusion, concerns about poor governance, inequality and poverty and psychological issues at the individual level. While counter narratives may go some way to addressing these, the role of outreach workers and community mobilisers working with at risk individuals is critical.
Overly broad restrictions on ‘terrorist’ are not only a human rights violation; they are also unlikely to prevent violence as they fail to recognise the complexity of radicalisation. The work of civil society organisations and human rights watchdogs in monitoring and exposing governments’ misuse of anti-terrorism legislation to restrict freedom of expression is thus essential. However, their work would be strengthened by a clear evidence base demonstrating the effectiveness of non-legislative approaches to challenging terrorist, extremist or divisive content. This requires broad cooperation between tech companies, academia and civil society, underpinned by state support, to measure the impact of the recent proliferation of counter narrative initiatives; and ensure such approaches comply with human rights.
 Amnesty International, Europe: Dangerously disproportionate: The ever-expanding national security state in Europe, 17 January 2017 https://cdt.org/insight/letter-to-ministers-of-justice-and-home-affairs-on-the-proposed-regulation-on-terrorist-content-online/, pp.37 – 44
 Europol, EU Terrorism Situation & Trend Report (2018), https://www.europol.europa.eu/sites/default/files/documents/tesat_2018_1.pdf
 Dunja Mijatović, ‘Misuse of anti-terror legislation threatens freedom of expression’, Council of Europe Human Rights Comment, 04/12/18 https://www.coe.int/en/web/commissioner/-/misuse-of-anti-terror-legislation-threatens-freedom-of-expression
 Human Rights Watch, World Report 2019, https://www.hrw.org/world-report/2019/country-chapters/turkey#803bf5
 See for example: Article 19, Turkey: Aggravated life sentences in Altans trial confirm absence of rule of law’, 03/10/18 https://www.article19.org/resources/turkey-aggravated-life-sentences-in-altans-trial-confirm-absence-of-rule-of-law/ Bar Human Rights Committee, ‘Trial Observation Interim Report, Şahin Alpay & others v Turkey Zaman Newspaper: Journalists on trial June 2018’, http://www.barhumanrights.org.uk/wp-content/uploads/2018/07/Zaman-TRIAL-OBSERVATION-INTERIM-REPORT-FINAL-1-1.pdf
 Amnesty International, ‘Spain: Counter-terror law used to crush satire and creative expression online’, 13/03/18 https://www.amnesty.org/en/latest/news/2018/03/spain-counter-terror-law-used-to-crush-satire-and-creative-expression-online/
 Letter to Ministers of Justice and Home Affairs on the Proposed Regulation on Terrorist Content Online, 04/12/2018 https://cdt.org/insight/letter-to-ministers-of-justice-and-home-affairs-on-the-proposed-regulation-on-terrorist-content-online/
 See, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which authoritatively interpret international human rights law in the context of national security https://www.article19.org/resources/turkey-academics-peace-trials-violate-free-expression/
 UN Security Council, Resolution 2354, U.N. Doc S/RES/2354 (2017) http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2354(2017)
 See for example: Council of Europe, WE CAN! Taking Action against Hate Speech through Counter and Alternative Narratives, 2017 https://rm.coe.int/wecan-eng-final-23052017-web/168071ba08
 There is no universal definition of ‘hate speech’ under international law. The worst cases of ‘hate speech’ may be prosecuted under charges of incitement to violence, hostility and discrimination; however much ‘hate speech’ cannot be restricted, despite being offensive. Such expression nevertheless demands a robust government response, including condemning such expression and the implementation of positive policy measures aimed at promoting dialogue and equality. See Article 19’s ‘Hate Speech Tool Kit’ (2015) for an overview of international legislation standards in this area: https://www.article19.org/data/files/medialibrary/38231/’Hate-Speech’-Explained—A-Toolkit-%282015-Edition%29.pdf
 RAN Issue Paper, Counter Narratives and Alternative Narratives (2015) https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/radicalisation_awareness_network/ran-papers/docs/issue_paper_cn_oct2015_en.pdf
 ODI, ‘What do we know about drivers of radicalisation and violent extremism, globally and in Niger?’, February 2017, https://www.odi.org/sites/odi.org.uk/files/resource-documents/11405.pdf