EUROPEAN COMMISSION
Secretariat-General
The Secretary-General
Brussels, 4.4.2016
C(2016) 2065 final
Ms Kirsten FIEDLER
Managing Director
European Digital Rights
Rue Belliard 20
1040 Brussels
Copy by email:
xxxxxxx.xxxxxxx@xxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
DECISION OF THE SECRETARY GENERAL ON BEHALF OF THE COMMISSION PURSUANT
TO ARTICLE 4 OF THE IMPLEMENTING RULES TO REGULATION (EC) N° 1049/20011
Subject:
Your confirmatory application for access to documents –
GESTDEM 2015/6363 and 2016/95
Dear Ms Fiedler,
I am writing in reference to your email, registered on 25 February 2016, by which you
lodge a confirmatory application in accordance with Article 7(2) of Regulation
1049/2001 regarding public access to European Parliament, Council and Commission
documents2 (hereafter 'Regulation 1049/2001').
1.
SCOPE OF YOUR REQUEST
Through your initial application GESTDEM 2015/6363, you asked the Commission to
provide you with:
(a)
all relevant documents in relation to the launch of the EU Internet Forum;
(b)
the list of participants;
(c)
the minutes of the meeting;
1
Official Journal L 345 of 29.12.2001, p. 94.
2 Official Journal L 145 of 31.05.2001 p. 43
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
(d)
documents related to the costs involved (travel reimbursements, event
costs etc);
(e)
the dates of upcoming meetings.
Through your initial application GESTDEM 2016/95, you requested
access to documents
(such as goals, guidelines or codes of conduct etc) that have been proposed, discussed or
agreed by the participants during, or in the preparation of the meeting of the EU Internet
Forum of 3 December.
By letter of 19 February 2016, the Directorate-General for Migration and Home Affairs
(DG HOME) replied to you. The following documents were identified as falling under
the scope of your request:
Agenda (document 1a);
Annotated agenda (document 1b);
Set of objectives and actions to steer discussions based on comments from the
different stakeholders (document 1c);
Explanation of the proposed position on the proposed objectives and actions
(document 1d);
Opening speech for Commissioner Avramopoulos (document 1e);
Closing speech for Commissioner Avramopoulos (document 1f);
Paper entitled 'Implementing for European Agenda on Security: The EU Internet
Forum, a background paper issued at the meeting (document 1g);
List of participants;
Minutes of the meeting of 3 December 2015.
DG HOME:
- granted full access to documents 1a, 1e, 1f, 1g, partial access to the list of
participants and the minutes of the meeting of 3 December 2015 and refused
access to the remaining documents, based on the exceptions of Article 4(1)(a),
first indent (protection of public security), 4(1)(b) (protection of the privacy and
integrity of the individual), Article 4(2), first indent (protection of commercial
interests), and Article 4(3) (protection of the decision-making process) of
Regulation 1049/2001;
- informed you, with regard to the costs of the meeting of 3 December 2015, that
the Commission signed a specific contract to receive logistical support for the
High Level Launch event for a maximum amount of 28.060 Euro;
2
- informed you that no list of upcoming meetings existed and that dates of urther
meetings have not been agreed.
By your confirmatory application you contest the initial decision of DG HOME by
requesting full access to the following documents:
a) Summary of the meeting of 3 December 2015 (ARES (2016)1158809);
b) Annotated agenda (ARES (2016)1159808);
c) Set of objectives and actions to steer discussions based on comments from the
different stakeholders (ARES (2016)1160160);
d) Explanation of the proposed position on the proposed objectives and actions
(ARES (2016)1160371).
Therefore, the review in this confirmatory decision will concern only these documents.
You provide several arguments in support of your confirmatory application which will be
addressed below.
2.
ASSESSMENT AND CONCLUSIONS UNDER REGULATION 1049/2001
When assessing a confirmatory application for access to documents submitted pursuant
to Regulation 1049/2001, the Secretariat-General conducts a fresh review of the reply
given by the Directorate-General concerned at the initial stage.
Following this review, I am pleased to inform you that wider partial access is granted to
documents a), b) and c) identified above.
The initial decision to refuse access is confirmed as regards document d).
2.1. Protection of the decision-making process and protection of the public
interest as regards public security
Article 4(3) of Regulation 1049/2001 provides that:
[a]ccess to a document, drawn up by an institution for internal use or received by an
institution, which relates to a matter where the decision has not been taken by the
institution, shall be refused if disclosure of the document would seriously undermine the
institution's decision-making process, unless there is an overriding public interest in
disclosure.
Article 4(1)(a) of Regulation 1049/2001 provides that [t]
he institutions shall refuse
access to a document where disclosure would undermine the protection of public
security.
3
Public disclosure of the redacted parts of documents a), b) and c) and of document d)
would seriously undermine the decision-making process protected by Article 4(3), first
subparagraph of Regulation 1049/2001, as explained below.
The EU Internet Forum focuses on deploying the best tools to counter terrorist
propaganda on the internet and in social media. Work within the EU Internet Forum
builds on voluntary engagement with the industry and better collaboration between the
different stakeholders. The EU Internet Forum provides a platform to develop
cooperation between the different stakeholders, to steer further discussions at a strategic
level, and to agree on concrete deliverables in terms of exchange of practices and
operational cooperation3.
As regards, more specifically, the redactions made in documents a), b) and c), I would
like to add the following:
- Document a) contains informal meeting minutes, drawn up for internal use under
the responsibility of DG HOME staff members. It contains factual information on
the meeting, which was disclosed at initial level. Wider partial access to this
summary is now granted at confirmatory level. The limited redacted parts reflect
preliminary reflections and positions of stakeholders and Member States'
representatives concerning the challenges and possible solutions, as well as views
expressed by the Commission staff members who drafted the minutes. It was
drafted for purely internal use. Nor was it approved by the external meeting
participants or shared with them;
- As regards document b), this agenda is an internal document drafted for the
purpose of providing suggestions on how to steer the discussion. Partial access to
this document is now granted.
The redacted parts reflect tactical suggestions of the Commission staff members
concerned on how to steer the discussion, possible alternatives to consider
depending on the dynamic evolution of the discussion, and other strategic
considerations to take into account. These purely internal considerations reflect
only the opinions of the Commission staff members who annotated the agenda.
The latter were not necessarily all taken up by the Commission official chairing
the meeting.
Their disclosure would therefore also risk creating confusion to the public in
relation to the Commission's official position as expressed by Commissioner
Avramopoulos during the meeting of 3 December 2015.
-
Documents c) (the set of objectives and actions) and d) (the explanation of the
proposed action) are also documents prepared by Commission staff for internal
use. Partial access is now granted to document c).
3
http://europa.eu/rapid/press-release_IP-15-6243_en.htm
4
The redacted parts of document c) and document d) contain information about the
challenges, the proposed strategy on how to face these, the tactical considerations
on the handling, and the proposed methodology in order to achieve the objectives
of the EU Internet Forum. There is a real and non-hypothetical risk that public
disclosure of the withheld (parts of the) document(s) would seriously undermine
the
Commission's
decision
making
process
and
the
collaboration on which the EU Internet Forum is based.
Public disclosure of the withheld parts of documents a), b), c) and document d), which
were drafted purely for internal use, would therefore have a negative impact on the
Commission's decision making process in the framework of the EU Internet Forum.
The Commission's preparatory work in the framework EU Internet Forum is continuous
and ongoing. In this context, public disclosure of the withheld parts described above
would seriously undermine the Commission's margin of manoeuvre in exploring, in the
framework of the ongoing decision-making process, all possible options free from
external pressure.
Public disclosure of these (parts of the ) documents would therefore seriously undermine
the serenity of the ongoing discussions and hence, the decision-making process within
the Commission in relation to the EU Internet Forum. The Commission and its staff
members should be able to explore all possible options free from external pressure.
In addition, some of the withheld (parts of the) document(s) reflect internal
considerations, as well as references to views and positions expressed by Member States
and external stakeholders. The EU Internet Forum has as its primary purpose to facilitate
and enhance cooperation. Therefore, good collaboration with internet industry and the
Member States are paramount. The engagement with different stakeholders and in
particular with the industry is based on a relationship of mutual trust among all
stakeholders involved. Public disclosure of the positions or proposals of stakeholders or
Member States would undermine that necessary climate of mutual trust.
In addition, public disclosure of the above-mentioned (parts of the) document(s) would
entail a real and non-hypothetical risk of seriously undermining the Commission's
decision making process, as it would reveal its strategy and its tactical considerations,
undermine its relation of trust with stakeholders and Member States, thereby harming its
power to fully contribute to the success of the EU Internet Forum.
Finally, issues to be dealt with by the EU Internet Forum are closely linked to matters of
public security within the meaning of Article 4(1)(a) of Regulation 1049/2001. Indeed,
the public dissemination of documents revealing concerns to be addressed and exploring
possibilities to overcome challenges to tackle terrorist propaganda online is to be handled
with extreme care.
5
The continued engagement of all stakeholders and the success of further action to be
developed within the Forum depend on mutual trust among stakeholders. This implies
protecting the content of discussions and concrete actions targeted at disrupting terrorist
activities on the internet and social media.
Identifying companies and revealing their views and action taken against terrorist content
on the internet would seriously undermine the effectiveness and success of the measures
implemented. Similarly, Member States' concerns and expectations are part of the
continuous dialogue to explore the most effective measures in countering terrorist
activities on the internet and social media. Public disclosure of such considerations and
concerns expressed during this dialogue would reveal vulnerabilities that terrorists could
further exploit. It is therefore of utmost importance that ongoing discussions and the
further elaboration of concrete action in this field are not exposed to public disclosure, at
least at this stage.
References to specific initiatives, open issues to be discussed and concrete steps to
implement would therefore undermine the protection of public security and the
Commission's on-going efforts to prevent and combat radicalisation, terrorism and
violent extremism.
In light of the above, the Commission concludes that access has to be refused to the
(redacted parts) of the above-mentioned document(s) (namely, the withheld parts of
documents a, b and c and document d), as their disclosure would seriously undermine the
decision-making process protected by Article 4(3), first subparagraph of Regulation
1049/2001 and the public interest as regards public security protected under Article
4(1)(a) of Regulation 1049/2001.
2.2. Protection of the privacy and integrity of the individual and of the
commercial interests of a natural or legal person, including intellectual
property
Article 4(1)(b) of Regulation 1049/2001 provides that
[t]he institutions shall refuse
access to a document where disclosure would undermine the protection of privacy and
the integrity of the individual, in particular in accordance with Community legislation
regarding the protection of personal data.
Article 4(2), first indent of Regulation No. 1049/2001 stipulates that
[t]he institutions
shall refuse access to a document where disclosure would undermine the protection of
(…) commercial interests of a natural or legal person, including intellectual
property,(…) unless there is an overriding public interest in disclosure.
6
The Court of Justice has confirmed that
where a request based on Regulation No
1049/2001 seeks to obtain access to documents including personal data, the provisions of
Regulation 45/2001 become applicable in their entirety, including Articles 8 and 18
thereof.4 Pursuant to Regulation 45/2001, personal data must be processed fairly and
lawfully. Any processing must be necessary for a specific purpose and proportionate to
this purpose.
Several of the withheld parts in documents a), b), c) and d allow for the identification of
companies and reveal their views and actions taken against terrorist content on the
internet. Public disclosure of these parts would undermine the protection of their
commercial interests in a reasonably foreseeable and not purely hypothetical way,
because it would expose them to terrorist threats and possible attacks. This has already
been the case for some of the companies as reported in the press5. At the same time,
public disclosure of the withheld parts described above would risk undermining the
integrity of the companies' managers, as they can personally become the targets of threats
and possible attacks of terrorist groups. This has already been the case, as reported in the
press6.
In light of the above, the Commission concludes that access to parts of the documents a,
b, c and d shall be refused as their disclosure would undermine the protection of the
commercial interests of the companies involved in the EU Internet Forum and jeopardise
the protection of integrity of their managers according to Article 4(2), first indent and
Article 4(1)(b) of 1049/2001.
3.
NO OVERRIDING PUBLIC INTEREST IN DISCLOSURE
The exceptions laid down in Article 4(2) and 4(3) of Regulation 1049/2001 must be
waived if there is an overriding public interest in disclosure. Such an interest must,
firstly, be public and, secondly, outweigh the harm caused by disclosure.
By your confirmatory application, you object
to the application of the exceptions under
Article 4 because you consider that there is an overriding public interest in disclosure of
the requested documents. In your view,
[a]ctions taken by private companies to remove
or block access to communications directly affect the right to freedom of expression of
over 500 million European citizens. In your view,
encouraging private companies to
impose restrictions on communications in order to achieve various political or public
policy goals (like the fight against terrorism or hate speech online) bears the risk of
undermining basic human rights principles. You argue that
[a]ccording to Article 52 of
4 Judgment of the Court of Justice of 29 June 2010 in case - C-28/08 P, Commission v Bavarian Lager,
para. 63.
5 See e.g. article in the Independent about Isis hackers threatening Facebook and Twitter founders for
shutting accounts:
http://www.independent.co.uk/news/people/isis-hackers-threaten-facebook-and-
twitter-founders-for-shutting-accounts-a6894921.html, http://money.cnn.com/2016/02/29/technology/mark-zuckerberg-threat-isis/
6 See e.g.
http://www.theguardian.com/technology/2016/feb/24/isis-video-targets-twitter-and-facebook-
ceos-over-suspended-accounts,http://money.cnn.com/2016/02/24/technology/isis-mark-
zuckerberg/?iid=EL
7
the Charter of Fundamental Rights, whenever a state or a public body acts in a way that
interferes with the human rights of citizens that interference has to be based on law.
However, if a private entity is asked to decide over the blocking and taking down of
potentially illegal material, this is not the case; can thus easily lead to legitimate speech
being limited and undermines the possibility for appeals processes.
The EU Internet Forum builds on cooperation, exchange of best practices and
development of concrete deliverables as part of a broader endeavour to counter terrorism
bringing together internet companies, civil society and law enforcement authorities. The
framework of action of the EU Internet Forum is the EU and national law. I understand
that you disagree that work within the EU Internet Forum builds on voluntary
engagement with the industry and better collaboration with the different stakeholders.
However, the argument put forward by you reflects your opinion on the content of the
policy pursued by the Commission as regards the EU Internet Forum.
It does not demonstrate in any way the existence of a public interest in disclosing the
(withheld parts of) the documents that form the subject of your request for access under
Regulation 1049/2001.
Nor have I, based on my own analysis, been able to identify any elements capable of
demonstrating the existence of a public interest that would override the need to protect
the Commission's decision-making process and the companies' commercial interests in
the framework of the EU Internet Forum.
Therefore, I consider that in the present case, the prevailing interest is to secure the
effective organisation and follow-up of the EU Internet Forum and ultimately the
Commission's efforts to address violent extremism and terrorism-related activities in the
Internet and social media, as part of the overall fight against terrorist radicalisation and
recruitment.
Please note that Article 4(1)(a), first indent and Article 4(1)(b) of Regulation 1049/2001
do not include the possibility for the exception defined therein to be set aside by an
overriding public interest.
4.
PARTIAL ACCESS
In accordance with Article 4(6) of Regulation 1049/2001, partial access is granted to
documents a), b) and c). However, for the reasons explained above, no further partial
access is possible neither to these documents nor to document d) without undermining
the Commission's on-going decision-making process and the protection of public
security.
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5.
MEANS OF REDRESS
Finally, I would like to draw your attention to the means of redress that are available
against this decision, that is, judicial proceedings and complaints to the Ombudsman
under the conditions specified respectively in Articles 263 and 228 of the Treaty on the
Functioning of the European Union.
Yours sincerely,
For the Commission
Alexander ITALIANER
Secretary-General
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Document Outline