A Dual Challenge to Human Rights Law: Online Terrorist Content and Governmental Orders to Remove it

Journal européen des droits de l'homme - European Journal of Human Rights 2023/1 pp. 3-29

25 Pages Posted: 22 Oct 2022 Last revised: 16 Aug 2023

See all articles by Tarik Gherbaoui

Tarik Gherbaoui

European University Institute - Department of Law (LAW)

Martin Scheinin

European University Institute - Department of Law (LAW); University of Oxford - Bonavero Institute of Human Rights

Date Written: September 6, 2022

Abstract

This article explores the dual challenge posed by the omnipresence of actual as well as perceived terrorist content in the digital realm, and by governmental removal orders aimed at addressing that content: On the one hand, the spread of actual online terrorist content endangers the enjoyment of human rights by individuals, starting from the right to life, albeit in a predominantly indirect fashion. On the other hand, the improper removal from the Internet of content that is merely perceived by some as terrorist has serious implications on the freedom of expression, including the freedom to receive and impart information and ideas. This article analyses the foundational human rights challenges inherent to the European Union’s recent efforts to regulate the dissemination of terrorist content in the digital realm through supranational legislation with direct transnational effect upon private actors across borders. By delving into multiple human rights challenges peculiar to the digital realm, the article explores whether human rights law is capable of articulating these challenges through what is here referred to as the ‘grammar’ of human rights law, namely its concepts, principles, and doctrines, and of providing answers to the thorny issue of online terrorist content.

Keywords: Digital realm, online terrorist content, removal orders, international human rights law, freedom of expression, EU Regulation 2021/784, extraterritoriality

JEL Classification: K33, K14, K39

Suggested Citation

Gherbaoui, Tarik and Scheinin, Martin, A Dual Challenge to Human Rights Law: Online Terrorist Content and Governmental Orders to Remove it (September 6, 2022). Journal européen des droits de l'homme - European Journal of Human Rights 2023/1 pp. 3-29, Available at SSRN: https://ssrn.com/abstract=4247120 or http://dx.doi.org/10.2139/ssrn.4247120

Tarik Gherbaoui

European University Institute - Department of Law (LAW)

Martin Scheinin (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

University of Oxford - Bonavero Institute of Human Rights ( email )

Faculty of Law
c/o Mansfield College, Mansfield Rd
Oxford, OX1 3TF
United Kingdom

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