Public instigation or online broadcasting: how EU and Greek national law suppress movement and solidarity, under the pretext of digital modernisation

One of the recent tendencies reflected in both EU and national Member States legislation is the troubling shift towards more restrictive legislative frameworks aimed at criminalising people on the move and the actors supporting them. Under the pretext of modernising legislation to reflect the demands of the digital age, new provisions are being introduced in order to increasingly target those providing support to people on the move, as well as those who monitor and report on human rights abuses. This article analyses the provisions enshrined in two such pieces of legislation—one at the EU level and one at the national Level—both of which share common characteristics serving the same purpose: the use of legal tools to expand the current criminalisation trend in the online sphere under the aforementioned guise.

By taking EU legislation as a starting point, it is crucial to focus on the problematic update of the 2002 Facilitation Directive, which was proposed in 2023 by the European Commission. The recently proposed Facilitation Directive was introduced as a framework "laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the EU".

This Directive represents a dangerous escalation in the EU's ongoing patterns to criminalise migration and suppress human rights defenders. Apart from concealing its non-criminalisation purpose and a humanitarian exception in the recitals and in the non- binding explanatory parts of this Directive, the objectives and the core provisions of the Regulation underscore the absence of protective or safeguarding provisions, providing Member States with the legal tools to further criminalise movement and solidarity actors. 

This policy's impact will fall most heavily on people on the move, subjecting them to unwarranted criminal charges and lengthy imprisonment simply for fleeing danger or offering help. The Directive threatens to set legal barriers against humanitarian efforts as well, enabling the criminalisation against the provision of assistance to people on the move. Additionally, the proposal could greenlight extensive digital surveillance and monitoring of online activities, thus raising profound concerns about its compatibility with fundamental privacy rights. Among the criminal offences recognised by this Directive, a newly introduced one, is this of "public instigation". 

Public Instigation

Article 3§2, defines what constitutes facilitation of unauthorised entry and introduces the offence of "public instigation." With this Article, the definition of facilitation is expanded, turning actions, like offering humanitarian aid or sharing critical information online, into potential criminal offences, thus opening the door to misuse, by blurring the line between support work and criminal offence. The poorly defined and vague term of public instigation could easily be weaponised against a broad range of individuals and groups, including people on the move themselves, civil society organisations and human rights defenders.

The Explanatory Memorandum, which is set to accompany the relevant provision, further complicates matters by suggesting that any online content that could be seen as facilitating or publicly instigating unauthorised entry, transit and stay in the EU through the internet is classified as illegal, and will be treated according to the relevant 2022/2065 EU Regulation, as regards illegal content. According to the latter, among measures taken against illegal content, can be the suspension of the account that published the content and the deletion of the content as a whole. Although Recital 6 specifies that providing objective information or advice to third-country nationals about the conditions for legal entry and stay in the Union should not be interpreted as "public instigation", it fails to explicitly exempt humanitarian assistance or other supportive activities from criminal liability. The “objective information or advice” element is insufficient as it falls short to provide a comprehensive overview of what falls under the scope of Article 3§2, allowing for interpretation that views support networks or online content, regarding migration and the rights of people on the move, as criminal. 

This provision risks discouraging individuals and organisations from engaging in humanitarian efforts, such as search and rescue (SAR) operations, or assisting foreign nationals in seeking international protection. It may also lead to arbitrary restrictions of the freedom of expression of any actor supporting or advocating for the access to asylum for people on the move. As a result, vital online resources —providing informative content about legal rights, available services etc.— could face censorship. 

In the EU Special Rapporteur on Human Rights Defenders’ report, concerns were raised about the vague and expansive new "public instigation" provision in the EU Facilitation Directive. This provision, which criminalises online instigation of migration, without the requirement of a profit motive, aims to expand the offences, through criminalising actions in stages prior to unauthorised entry, transit and stay in the Union. The Rapporteur recommended either removing the provision entirely, or, at least, refining its definition to include a profit motive and a humanitarian exemption. Without these changes, and in a landscape already lacking in safe, legal migration pathways, the provision may stifle the dissemination of valuable sources of information and platforms for those seeking a link with support services. Council of Europe Member States have expressed concerns regarding the sufficiency of the definition of the provision, and its potential interference with the freedom of expression, as well as a tendency towards the total removal of the "public instigation" provision.

The contested provision conflicts with other EU initiatives, which aim at protecting individuals and organisations, engaging in matters of public interest, from legal threats. The Anti-SLAPP Directive represents a significant step in safeguarding such actors from unfounded and abusive lawsuits, namely Strategic Lawsuits Against Public Participation (SLAPPs), providing safeguards to ensure a fair legal process. SLAPPs have been employed against human rights defenders assisting people on the move, through formal means, such as judicial accusations, investigations, criminal charges and court trials, and informal ones, such as hostility, pressure and defamation. However, the Facilitation Directive lacks comparable provisions, raising concerns for the protection of fundamental rights, like freedom of expression. Its broad language risks criminalising journalists, lawyers and media outlets, potentially leading to self-censorship and reduced activities, a trend already noted among BVMN member organisations.

Under this realm, the proposed Facilitation Directive contributes to the increasing criminalisation through legal means, unsubstantiated and lengthy proceedings, which aim to harass and silence efforts of public watchdogs to uphold democracy, human rights standards and scrutinise the actions of the authorities. The most severe consequences, though, will again fall on people on the move themselves, who are increasingly being framed as smugglers, simply for seeking safety or providing help to others. 

Convergence with national laws: Greece’s online trial broadcasting amendment

The convergence between EU policies and the broader trend towards criminalisation of migration is not confined to the realm of EU legislation alone. This trend is represented in Member States legislation, which often align their national laws with this punitive atmosphere, particularly concerning people on the move and those who support them. A recent amendment to Greek legislation exemplifies how, seemingly minor, legal updates reflect this broader trend. Specifically, the discussion around the proposed 'public instigation' provisions can be closely linked to said amendment regarding the broadcasting of trials online. Upon closer examination, it becomes evident that the new amendment, which effectively restricts the dissemination of information about court cases online, curtails freedoms, such as freedom of expression, access to information, and the public’s right to be informed about judicial processes.

The recent amendment to Article 8(1) of Law No. 3090/2002, now incorporated into Article 31 of Law 5119/2024, reflects a worrying shift in the regulation of court proceedings in Greece. By extending the prohibition of trial broadcasting, to also include online transmission of the court proceedings and the use of speech-to-text software to transmit the developments from inside the courtroom, the amendment introduces vague and overly broad restrictions. Legitimate concerns arise, therefore, about transparency, media freedom, and publicity of the trials. Under the guise of modernising the law to address digital advancements, this amendment significantly curtails the public’s right to access court proceedings.

The Court of Appeal of Crete in Chania. 30 individuals were tried at this court for so-called smuggling on 7 July 2025. BVMN was present to monitor these trials. Credits: Xrysa Vasileiou

The previous framework primarily prohibited audio and video recordings of Court proceedings, with exceptions allowed by court authorisation. Yet, the broadness of the amendment leaves critical terms undefined, creating an opening for arbitrary or selective enforcement. By casting such a wide net, the amendment risks criminalising trial watches and observers, who play a crucial role in ensuring public oversight of important and politically sensitive cases. What is particularly concerning, is the shift in decision-making power, from the presiding judge to the prosecutor and trial parties, creating a worrying prioritisation of the privacy of the proceedings, over the public’s right to information.

According to the Memorandum accompanying the publishing of the law, the amendment aims to provide an objective definition of the crime, to include the use of Internet and special speech to text software for the real-time transmission of the trial via online platforms. As explained in the Memorandum, these forms of recording and direct transmission showcase the development of modern methods of digital technology, dictating the broadening of the previous framework. However, according to the amendment, the ability to inform an indefinite number of persons, not physically present in a courtroom, about the developments of the trial, is not covered by the Constitutional freedom of publicity of trial proceedings. The reasoning is that only physical presence limited in the courtroom falls under the scope of the freedom of publicity,  whereas the direct transmission of such proceedings via the Internet to the public undermines this very principle. 

A simple interpretation of the Greek Constitution reveals that indirect publicity is recognised, by both theory and judicial practice, as falling under the scope of the publicity of the proceedings, and thus both the presence of observers in the courtroom and the transmission of trials is allowed. Hence, concerns regarding the conformity of the amendment to the constitutional principle have been raised. Despite Article 93 of the Hellenic Constitution allowing for restrictions in the publicity of the trials, due to issues of protection of privacy or public morals, it is evident that the introduced amendment legislates against the spirit of the Constitution, by leaving the decision on the publicity of the procedure upon the prosecutor and the parties of the trial.

The entrance to the Court of the Aegean in Mytilene, Samos. Between 16-18 June 2025, BVMN monitored the trials of 34 individuals accused to so-called smuggling. Credits: BVMN

The amendment’s intent appears less about adapting to digital realities, and more about shrinking the influence of trial monitors and observatories, whose presence often acts as a scrutiny mechanism on judicial proceedings. Trial observers frequently serve as a mechanism of pressure, ensuring fair trial standards and reporting on systemic issues within the judiciary. By tightening control over how trial information is disseminated, this law threatens to diminish the role of these actors, weakening public oversight and transparency.

Rather than simply updating the legal framework, this amendment is part of a wider trend of restrictive measures, that aim to limit the space for actors who scrutinise governmental deficiencies and aim to publicly inform people about them. The vague wording of the amendment seems to be a deliberate effort to discourage public involvement and scrutiny, hindering the work of trial watches and observatories, thus reducing the public’s ability to be updated about the developments in significant court cases.

Recognising a pattern

Provisions such as the ones in Article 3 of the proposed Facilitation Directive or the amendments in trial monitoring laws, raise serious concerns about how vague definitions can be misused to target Human rights defenders and suppress freedom of expression. These broad definitions risk deterring civil society organisations, journalists, lawyers and individuals, from sharing migration-related information, particularly on online platforms. Similar trends are evident in Greece, where legal amendments criminalising the spreading of "fake news", as well as expanded use of surveillance, have intensified the risks for those exposing government misconduct or showcasing violations of rights of people on the move. Instances of unlawful surveillance, smear campaigns, and lawsuits, including SLAPPs against investigative journalists, have created a climate of fear and repression.

In this article, we examined two pieces of legislation —one at the EU level and another at the national level in Greece— to highlight a broader pattern of growing criminalisation of people on the move and the actors supporting them. Despite differing scopes, both pieces of legislation reveal common underlying goals.

Firstly, both laws utilise the rapidly evolving digital space as a justification for broadening the scope of criminal offences. While framed as necessary updates to meet the demands of modern technology, these provisions in reality extend criminal liability. This extension is particularly concerning, because it enables the targeting of those who use digital platforms to inform, support,  advocate or expose and criticise governmental deficiencies.

Secondly, both laws rely on ambiguous and vague language to expand the scope of criminalised acts. This vagueness complicates the precise assertion of the acts falling under the scope of these offences. The EU legislation targets the dissemination of information that could be construed as "public instigation," while the Greek law limits the online broadcasting of court proceedings under similarly broad and unclear terms. Such ambiguity allows authorities significant leeway in interpreting and applying the laws, enabling the criminalisation of actors, based on their content or involvement in online activities.

At their core, these legislative changes serve a larger purpose: the criminalisation of people on the move and the deterrence of the presence of civil society. The expanded restrictions on freedom of information and the transparency of judicial processes further shrink the space for critical engagement, hindering the efforts to uphold fundamental rights.

In conclusion, the legal developments examined in this article reflect a disturbing EU-wide and national policy shift towards more restrictive frameworks, where migration is presented as a crime, and those supporting people on the move are portrayed as threats to national security. Under the guise of modernising laws for the digital age, these legislative changes expand the scope of criminal liability and augment the risk of criminalisation of people on the move, while creating opportunities for selective enforcement, aiming to curtail the involvement of activists, journalists, and trial monitors. This broader trend not only undermines fundamental rights, but also creates a chilling effect, silencing and discouraging engagement of supportive actors. Ultimately, these measures reflect a coordinated effort to suppress civil society’s role, and reinforce a securitised approach to migration.

The research for this article was carried out with the support of the Heinrich Böll Stiftung Thessaloniki.
The content of this article is the sole responsibility of the authors and does not necessarily represent the views of the Foundation.