Ordo Iuris in defense of state sovereignty in combating cyber violence

The European Commission calls for opinions

In the second half of July, the European Commission  issued an invitation for comments  regarding the Action Plan against cyberbullying. The purpose of this plan, according to information provided by the Commission, is to create a comprehensive EU approach to combating cyberbullying and supporting member states in these efforts. The EC justifies its actions by claiming that there is a growing trend of aggressive behavior on the Internet.

According to the declarations of the European Commission, the Plan is to utilize instruments such as the European strategy for a better internet for kids – BIK+   and the Digital Services Act. The Ordo Iuris Institute therefore decided to present its position on this matter to the European Commission. 

Initiative assumptions

Experts from the Ordo Iuris Institute have indicated that combating cyberbullying does not require establishing a uniform approach at the level of the entire European Union, especially not the creation of a common definition of cyberbullying or urging member states to adopt comprehensive EU strategies. Online harassment is a diverse and deeply rooted problem in the cultural, educational, and social contexts of individual member states. 

Subsequently, the lawyers of Ordo Iuris have pointed out that there are already appropriate legal regulations at both the level of the European Union and the level of individual member states. These include measures such as the Digital Services Act and the directive on combating violence against women and domestic violence. The mentioned legal acts, along with other regulations and instruments, create a comprehensive framework for combating cyber violence, including content reporting systems and protection for those affected by violence. Therefore, further actions at the EU level could lead to duplication of tasks performed by the member states, to the detriment of the principle of subsidiarity, as expressed in Article 5 of the Treaty on European Union (TEU). 

Ordo Iuris experts also pointed out that contrary to the thesis contained in the European Commission document, there is no evidence that EU actions are necessary for cohesion and that fragmented national approaches remain ineffective. “Instead of new initiatives, it is better to support the exchange of good practices between member states without imposing harmonization,” it is stated in the opinion. 

Protecting victims of cyber-bullying must not infringe on fundamental rights and freedoms

In the opinion submitted to the EC, Ordo Iuris lawyers have drawn attention to the need to protect treaty rights and freedoms, including freedom of speech, protected under Article 11 of the Charter of Fundamental Rights of the EU and Article 10 of the European Convention on Human Rights. The first of them guarantees every individual the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas, regardless of borders. Similarly, art. 10 of the European Convention on Human Rights protects freedom of expression as a cornerstone of democracy, covering both the right to express one’s own views and the right to criticize. 

In this context, the authors of the opinion emphasized the risk associated with the imprecise definition of the term ‘cyberbullying’, which could lead to abuses by entities responsible for content moderation. The difference between justified, sharp political criticism, satire, or lively public debate and actual harassment is not always clear. The document mentions combating incitement to hatred; however, the lack of precise frameworks may lead to the preventive removal of content, which in practice limits freedom of speech and pluralism of opinions.

Therefore, the Ordo Iuris opinion has recommended relying on already existing regulations. It has also been indicated that a more effective way to combat the phenomenon of online harassment is to strengthen educational activities and promote multi-sectoral cooperation (interdisciplinary and interinstitutional), which can ensure effective prevention of harassment without the risk of censorship.

“Harassment on the Internet or cyberbullying is a phenomenon that requires condemnation and decisive action. However, this fact, contrary to what is claimed by the European Commission, is not a sufficient argument to regulate the combating of this phenomenon at the European Union level. First and foremost, it should be noted that the existing legal framework is sufficient for taking actions aimed at combating cyberbullying. Secondly, this negative phenomenon is very diverse if we consider its features and characteristics in each of the 27 EU member states. In this context, it is worth adding that in Polish law there are already appropriate regulations, especially in the field of criminal law, which allow for effective protection of victims of digital violence. Therefore, countering cyberbullying does not require the introduction of a uniform definition or a common strategy at the EU level – comments Patryk Ignaszczak from the Ordo Iuris International Law Center.