JUSTICE - No. 65

35 Fall 2020 Likewise, there should be greater disclosure of the application of the code — the decisions reached and the reasons for the decisions. Presently, we are playing catch up with the internet. The internet developed with little or nothing in regulatory control and, in so doing, wreaked a good deal of harm, through the spread of incitement of hatred. With COVID-19 we are falling further behind. Only belatedly is this harm being addressed. Legal Considerations The IHRA adopted definition of antisemitism was expressly stated to be non-binding. In light of the relative lack of expertise of internet providers in addressing antisemitism and their reliance on legislation, it would be useful for all countries to develop Holocaust denial legislation and, more generally, legislation prohibiting incitement to hatred through antisemitism. This is a general, not just a COVID-19 specific problem. The existence and spread of the COVID-19 related bigotry problem highlights the general problem and emphasizes the need for a solution. The European Parliament and the Council of the European Union, modifying a 2010 Directive, adopted in 2018 an amendment requiring member states of the European Union to ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect the general public from programs, user generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on listed grounds. 31 Those grounds include religion, ethnic origin, race and membership in a national minority. Member states of the European Union had until September 19, 2020 to bring into force the laws, regulations and administrative provisions necessary to comply with the directive. 32 The European Audiovisual Observatory provides an overview of the implementation of the directive in the 27 European Union states and the UK. 33 The European Commission, on July 2, 2020, released guidelines setting out criteria to identify video sharing platform services subject to the directive. 34 A European Commission press release issued at the time of the guidelines stated that: “online players will have to ensure, in a similar way to traditional media players, that users are protected against hate speech ... Online platforms must take action against flagged content, which incites violence, hatred and terrorism ....” 35 Formally, the guidelines apply to member states 36 of the European Union, requiring them to enact and implement laws subject to the directive, with the assistance of the guidelines. The practical effect of these guidelines is to make the major social media platforms, includingYouTube, Twitter and Facebook, subject to the directive. However, since the implementation of the guidelines is one step removed from internet platforms, through member states and their legislation, it is difficult to assess the direct impact of the guidelines on the platforms. Assessment would have to be undertaken country by country. The European Union has procedures for dealing with infringement of its directives by member states. As of the end of 2020, there are no infringement proceedings of which the author is aware relating to the application of the 2010 directive to social media platforms. Since 31. Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. 32. Ibid. , Art. 2(1). 33. OBS,“Which EU countries have transposed the AVMSD into national legislation?”OBS, Sept. 18, 2020, available at https://www.obs.coe.int/en/web/observatoire/home/-/ asset_publisher/9iKCxBYgiO6S/content/which-eu- countries-have-transposed-the-avmsd-into-national- legislat ion-?_101_INSTANCE_9iKCxBYgiO6S_ viewMode=view/ 34. Communication from the Commission Guidelines on the practical application of the essential functionality criterion of the definition of a “video-sharing platform service”under the Audiovisual Media Services Directive 2020/C 223/02C/2020/4322, available at https://eur-lex. europa.eu/legal-content/EN/TXT/?uri=CELEX%3A520 20XC0707%2802%29 35. “Commission takes further steps to promote European audiovisual works and protect vulnerable viewers,” E UROPEAN C OMMISSION (July 2, 2020), available at https:// ec.europa.eu/commission/presscorner/detail/en/ IP_20_1209 36. “Infringement procedure,” E UROPEAN C OMMISSION , available at https://ec.europa.eu/info/law/law-making- process/applying-eu-law/infringement-procedure_ en#:~: text=According%20to%20the%20EU%20 treaties,cases%2C%20can%20impose%20financial%20 penalties