By Stuart Macdonald
In a recent article, co-authored with Jonathan Hall KC, I made the argument that it is possible to disseminate terrorist propaganda to the public in (what may be regarded by some as) private online spaces. Here, I outline this argument and consider its relevance to the EU’s Terrorist Content Online (TCO) Regulation.
The public and the private are not mutually exclusive. They overlap. It is uncontroversial, for example, to say that individuals retain some degree of privacy even when in a public space. So, it is possible to talk of privacy in pubic.
The reverse of this is also true: it is possible to publicise in private. To illustrate this, consider how the so-called Islamic State (IS) uses Telegram to disseminate its propaganda. Official releases are posted in private Telegram channels. Supporters then take this content, store it on file-sharing sites, and generate large banks of URLs. These URLs are then posted in public Telegram channels, so that users can access the content and share the URLs on beacon platforms such as Meta or X.
So, dissemination is not a single act. It is a process, one that has multiple stages. We can call this process chain accessibility.
The private channels at the first stage of this process can be accessed using joinlinks. Often, if you have a joinlink, you can access the channel without having to interact in any way with the channel administrator. This is how many analysts and researchers manage to gain access and track the latest propaganda releases. But finding these joinlinks can be quite difficult. It can be a time-consuming process that requires knowledge and skill.
So, should these ostensibly private Telegram channels be regarded as “private” spaces? They may be labelled private – but what is important is the substance, not the label. In substance, are they private? Arguably. There are different theories of privacy. If you conceive privacy as being about secrecy and anonymity, then you may well regard these private Telegram channels as private. They are secret, they are hard to find, and participants don’t reveal their identities.
So perhaps they can be regarded as “private” in substance. But, given that the public and the private may overlap, we need to ask whether the posts in these channels can also be regarded as public communications? There are at least two reasons to believe that they are.
First, these private channels are not like the WhatsApp groups I have on my phone, which are limited to close family and friends. Yes, there are restrictions on who can access IS private channels. But these restrictions are not designed to limit access to family and friends. Rather, they are designed to limit access to IS supporters. These IS supporters are a section of the wider public. Often, they will not even know each other’s real identity. So, the restrictions on access to these channels are designed to limit access to just one section of the public. They are therefore public communications, even if you are only communicating with one section of the public.
Second, the release of new propaganda in private channels is the first stage of the wider process of chain accessibility. The ultimate objective of this process is to communicate with as many people as possible. The restrictions on access at this first stage of the process are designed to achieve this ultimate objective, by preventing any disruption to the dissemination chain. If you view the private Telegram channels in this wider context, the aim of the whole process is public communication, and these private groups are part of this process.
In short, the release of IS propaganda in private Telegram channels is a public communication that occurs in what are arguably private settings. It is an example of publicising in private.
Turning, then, to the EU’s TCO Regulation, how should all of this inform the interpretation and application of the Regulation? Here there are four points worth noting.
First, the TCO Regulation does not draw a simplistic public/private dichotomy. This stands in contrast to the UK’s Online Safety Act, which states that communications are either public or private – with Terrorism Content Notices and proactive technology requirements only available in respect of the former. For the TCO Regulation, the question is simply whether or not the content was disseminated to the public. This leaves open the possibility that content was disseminated to the public in ostensibly private settings.
Second, the TCO Regulation contains only a single mention of private communications – in Recital 14, which states that “Interpersonal communication services … such as emails or private messaging services” are out-of-scope. The interpretation of the term “private messaging services” is important here. For the reasons already given, the term should be interpreted to exclude private Telegram channels with openly available joinlinks, as well as other analogous communication channels. This is essential to prevent the exploitation of ostensibly private online spaces.
Third, what factors should be relevant when deciding whether content has been disseminated to the public? In particular, what is the relevance of how difficult it is to access the content? Here the Regulation is open to different possible interpretations. On the one hand, Rectial 14 says that “dissemination to the public” should mean making information “easily accessible to users in general” (emphasis added). Yet finding the joinlinks to access private IS Telegram channels is not easy. It takes a level of expertise and can often be time-consuming. On the other hand, Recital 14 goes on to say that “where access to information requires registration or admittance to a group of users, that information should be considered to be disseminated to the public only where users seeking to access the information are automatically registered or admitted without a human decision or selection of whom to grant access”. So, if all that is needed is the joinlink, and no interaction with the channel administrator is necessary, this suggests that these private Telegram channels are in scope. The latter approach – which focuses on potential access rather than ease of access – is to be preferred.
Finally, it is important to note that this issue has wider implications. The 2017 EU Directive on combatting terrorism requires member states to criminalise public provocation to terrorism. This again raises the question what constitutes a public communication. Can statements made in private Telegram channels amount to public provocation to terrorism? There are strong reasons, of both principle and policy, for not placing them beyond the scope of criminal sanctions.
This blog is based on the article Macdonald, S. & Hall, J. (2025). Publicising terrorism in private: criminal law, online safety and the meaning of “public communications”. Law Quarterly Review, 141, 271-292
Stuart Macdonald is Professor of Law at the Hillary Rodham Clinton School of Law, Swansea University, UK. He is Co-Director of the University’s Cyber Threats Research Centre (CYTREC) and Coordinator of the VOX-Pol Network.
IMAGE CREDIT: PEXELS
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