For a deeper look into why it is necessary to have clear and robust ToS, we introduce two different perspectives: the legal and the corporate/operational.
Legal perspective
ToS are required to comply with current (EU) law, including the TCO Regulation but also EU Directive 2017/541, which strengthens EU-wide handling of terrorist content by (1) providing a definition of terrorist content, (2) setting penalties for it (Art. 15), (3) strengthening the victims’ rights and support, and (4) acknowledging terrorism as a transnational, cross-border threat. Both the Directive and the TCO Regulation foster EU-wide and international cooperation. ToS are a venue where HSPs can emphasise their commitment to countering terrorist activity.
ToS are intended to protect a HSP from liability (as long as ToS are conform with applicable law). Since it is a contract between the HSP and its users, ToS are a legally binding agreement between these two parties. ToS allow the HSP to set out rules for (non-)acceptable use in accordance with the HSP’s values.
Furthermore, clear ToS are important when encountering and moderating problematic content. HSPs can refer back to their ToS to justify content moderation if they include detailed information on prohibited content practices, including a prohibition of terrorism.
Company Perspective
First, it is central to the HSP’s operational business and, thus, to the success of the company to comply with legislation. HSPs have a certain responsibility towards their shareholders, who expect compliance. In addition, financial liability may be incurred, and regulatory penalties or reputational damage are further possible consequences of non-compliance.
Second, as prominent societal figures, HSPs have a responsibilities to the public, both collectively and individually. The responsibility to the public at large involves countering illegal activities such as terrorism and detecting and preventing terrorist content before it is widely disseminated. By stating in the ToS that illegal activities are prohibited, HSPs lay a foundation for a safer online sphere and can rely on it when actioning illegal content. Clear ToS also help companies demonstrate their responsibility to individual members of the public by building trust through transparency. In this respect, HSPs demonstrate to individual users that they will be protected from harmful content on the platform when such content is explicitly and enforceably prohibited in the ToS.