Ref. Ares(2020)700129 - 04/02/2020
Ref. Ares(2020)1569226 - 13/03/2020
Ref. Ares(2020)2922680 - 05/06/2020
This document has not been adopted or endorsed by the European Commission. Any possible measures indicated in this paper are the preliminary elements being
considered by the Commission services, they do not preclude the measures to be
finally considered in the Impact Assessment and may not in any circumstances be
regarded as stating an official position of the Commission. The information
transmitted is intended only for the Member State or entity to which it is addressed
for discussions and for the preparation of the Impact assessment and may contain
confidential and/or privileged material.
IMPACT ASSESSMENT ON ILLEGAL CONTENT ONLINE
STAKEHOLDER CONSULTATION:
MEMBER STATES
Introduction:
Following the initial discussion with Member States at the EU Internet Forum (EUIF), the
Commission would like to get more detailed views on possible actions to more effectively
tackle terrorist content online as part of the ongoing work on the Impact Assessment on
Illegal Content Online. These views will complement the Open Public Consultation (OPC,
availab
le here), as well as the data collection exercise based on the table of indicators.
The Commission started work on an impact assessment outlining potential problems,
objectives and options in the attached Inception Impact Assessment (IIA). As part of the
options to be considered, the Commission will analyse the current situation (baseline
scenario) as well as actions to reinforce the voluntary measures as well as possible sector-
specific legislation (including in particular on terrorism content online) as well as horizontal
legislation applicable to all types of illegal content.
The measures presented in the Inception Impact Assessment1are initial ideas, and
additional actions and options could be considered. The actions to be undertaken would
be mainly addressed to online platforms, but could also require further action by Member
States.
Member States are kindly requested
to reply to the questions below and provide any
additional considerations in writing by 13 June 2018. The results of this questionnaire
will be presented and discussed at the
forthcoming meeting on 15 June. In parallel, the
European Commission's Directorate-General for Communications Networks, Content and
Technology convened its expert group under the eCommerce Directive also feeding into
the work of the impact assessment.
Questions
I.
Problem and baseline scenario
1 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-1183598_en
1. What are the
provisions, arrangements etc under national law addressing the
removal of terrorist content2 for preventive purposes (e.g. do you have duty of
care provisions3, specific notice and action procedures, provisions on transparency
of companies' actions in relation to the removal of terrorist content, provisions on
safeguards, etc.)? Please indicate below – where relevant – the applicable laws or
other legal documents.
Notice
and
action NO
procedures
Transparency rules
NO
Safeguards
NO
Do you have
specialised entities that notify/refer terrorist content to hosting
service
providers?
What
is
the
legal
basis
and
benchmark
for
notification/referral (illegality of content, terms of service of hosting service
provider)?
NO.
We do not have a mechanism in place. In case of illegal content, according to a
court decision, the provider has the obligation to remove it.
In Romania, the measure of blocking or removing illegal content online may be
enforced by a decision of the administrative authorities or of the courts of law.
Do you consider them
sufficient in terms of preventing accessibility of terrorist
content? What are the limitations?
We appreciate the usefulness of a legislative adjustment, which allows direct
cooperation with and among the providers to identify and remove terrorist content
online.
2. Do you consider that the
amount of terrorist content online in the last [two] years
has overall
Decreased substantially
Decreased
X Continued at the same level
Increased
Increased substantially
Please indicate the basis for your assessment. What do you think has contributed to
this trend?
2 For the purpose of this questionnaire, "terrorist content" is defined as in the Commission Recommendation of
1.3.2018 on measures to effectively tackle illegal content online (C(2018) 1177 final). https://ec.europa.eu/digital-
single-market/en/news/commission-recommendation-measures-effectively-tackle-illegal-content-online
3 See recital 48 of the Directive on electronic commerce
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32000L0031
In recent years, companies and authorities have taken steps to remove or disable
access to terrorist content online. The online environment offers unlimited
opportunities to publish terrorist content (including Darknet, DeepWeb). The
terrorists use very dynamic and flexible tools, that they can easily move from an IT
infrastructure to another.
3. Do you see a
risk that removal by companies on their own initiative
could
interfere with investigations or intelligence gathering? What would be the
mitigating measures necessary to address any such risks?
It could interfere. The companies should preserve all suspected illegal material and
all the details related to that material prior to the removal, in order to make it
available for competent authorities.
4. Do you see a risk of
erroneous removal by platforms of legal content (e.g. removal
of content misidentified as illegal, removal of content disseminated for research,
educational or journalistic purposes, "over-removal")? Are you aware of
any cases of over-removal? What would be the
mitigating measures necessary to address
any such risks?
We are not aware of any cases of erroneous removal by platforms of legal content.
If such an error occurs, we consider it as appropriate to have in place procedures,
involving the human factor for additional evaluation and, in case the materials prove
to be legal, the possibility to restore them should exist.
II.
Non regulatory options: reinforcing voluntary action
1. Do you think that the work under the
EUIF as reinforced and complemented by the
Recommendation is
sufficient action at EU level to effectively tackle terrorist
content online?
Taking into account the dynamics of technological evolution, we consider necessary
to continuously update the measures for combating illegal online content. Also, their
application and further update might be implemented by agreements between
companies and MS‘ institutions.
2. Do you consider that the
EUIF's work should be further developed in order to
reinforce action at EU level to tackle terrorist content online e.g. through a
Memorandum of Understanding in which companies and possibly Member States
would sign up to concrete commitments (see possible measures below)?
YES.
3. Which of the following
possible elements should in your view be addressed and
further developed within a voluntary approach? Please indicate the need from a
scale from 1 (unnecessary) to 5 (very necessary)
3
More specific objectives for companies’ actions (e.g. request a certain
percentage of content taken down within a certain time limit)
5
Stronger commitments in terms of internal processes and resource
allocation (e.g. to have certain procedures in place, conduct risk
assessments and establish mitigating procedures, content of Terms of
Service, training, capacity to detect content in different languages)
5
Standardised
working
arrangements
between
companies,
law
enforcement and Europol to enhance understanding of how platforms
are abused, to improve referral mechanism, avoiding unnecessary
duplication of efforts, facilitating requests from law enforcement agencies
in relation to criminal investigations4.
4
Stronger commitment on specific proactive and preventive measures (i.e.
further development and participation in industry-led schemes, such as
the database of hashes developed in the context of the EUIF)
3
More detailed requirements on transparency and reporting
3
More detailed requirements to companies on safeguards against over-
removal
2
Establishment of an external audit/monitoring mechanism
5
Establishment of contact points, both in companies and Member States,
to facilitate referrals (and feedback) and requests from law enforcement
authorities in relation to criminal investigations.
4
Additional support (e.g. by Europol) to referral capacities in Member
States
4. What other additional measures could be developed within a reinforced voluntary
approach?
To encourage the cooperation between the providers to mutually raise the
awareness.
5. Which further actions could be taken to secure participation from those
companies
who have
not engaged?
The adoption of mandatory legal provisions could secure participation of all
companies.
6. Which further actions could be taken to
support small companies and start-ups in
tackling terrorist content online effectively? Should these be taken by larger
companies, public authorities or both?
It could be useful that public authorities and larger companies support small
companies by providing training (lessons learned, best practices and ways
forward) and logistics in order to better detect and combat illegal online
content.
7. Do you think that the voluntary approach is
effective and flexible enough to ensure
that companies continue their efforts in the
long term? Please indicate with which
statement you would agree with:
Ye s
No, it should be reinforced as presented above to obtain sufficient
guarantees
4 See point 40 of the Recommendation.
No, it should be reinforced via legislation
X
III.
Legislative options
1. Why would you consider
legislation necessary at this time? What would be the
concrete benefits? What
risks could legislation entail?
We consider necessary to define illegal online content in the MS’ legislations,
as well as to stipulate the relevant obligations imposed upon the providers of
online services.
One of the risks lies in the non-disclosure of elements that may be related to
online terrorist / extremist content, in which case the authorities may not take
legal actions.
Another risk is the ambiguous definition of the obligations imposed upon online
service providers. This could have as a result their disengagement in
preventing and combating illegal online content.
2. What should be the
material scope of legislation (i.e. how should terrorist content
be defined)? Do you consider that covering material inciting to commit terrorist acts
(Article 21/Article 5 of the Terrorism Directive5) is sufficient or should the
dissemination of material pursuing other terrorist purposes be included as well?
Material the dissemination of which pursues the following objectives should be
included in legislative measures:
X Recruitment for terrorism
X Providing training for terrorism
X Terrorist financing
Other, please elaborate:
To what extent should material produced by UN/EU designated terrorist
organisations be included?
It should include all types of materials identified and produced by terrorist
organisations, listed by UN/EU.
3. Which
measures (based in particular on the elements mentioned in the Inception
Impact Assessment)
do you consider as
necessary elements of legislation to be
impactful? Please indicate the need from a scale from 1 (unnecessary) to 5 (very
necessary)
5
Definition of terrorist content (
see question above)
5
Requirements regarding the companies’ terms of service
5
General requirement for companies to put the necessary
5 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and
replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017L0541
measures in place to ensure that they do not host terrorist
content (complemented by self regulation)
5
Specific requirements in terms of action upon referral (including
time limit of one hour)
5
More explicit and detailed obligations to deploy specific
proactive measures (including automatic detection)
4
Specific requirements to cooperate with other hosting service
providers to avoid the dissemination across platforms
5
Sanctions in case of non-compliance
5
Exchanges of information with law enforcement to limit any
interference with investigations and to feed into the analysis of
terrorist material
4
Clarify that companies engaged in proactive measures benefit
from the liability exemption (Good Samaritan clause)
4
Requirement to Member States to increase referral capabilities,
quality criteria for referrals and for referral entities in Member
States to provide relevant support to companies in case of
doubt about qualification as terrorist content (e.g. through points
of contact)
5
Nomination of point of contact within Companies
5
Reporting obligations for companies6
3
Transparency requirements for companies vis a vis their users7
3
Compulsory safeguards, such as the ones in the general
chapter of the Recommendation
4
The establishment of an external audit/monitoring mechanism
for assessing compliance of companies.
Do you consider that minimum requirements could usefully be complemented by
self-regulatory measures? And if so, which ones?
NO.
4. What
other additional measures could be developed within legislation?
Putting forward a Regulation setting out the measures to tackle illegal online
content in order to level the legislation across the EU MS.
5. What should be the
personal scope of the legislation? Only hosting service
providers within the meaning of the Directive on electronic commerce or other
service providers?
We consider that the legislation should envisage all companies providing online
services or performing activities in the online environment.
6 See point 41 of the Recommendation.
7 See points 16 and 17 of the Recommendation.
6. Do you think
smaller companies should be covered by all obligations or should
they be exempted from some of the obligations (e.g. proactive measures) but
obliged by others (e.g. time-limits after referral)? Which companies could be
partially exempted and from which obligations?
Smaller companies should be covered by all obligations.
7. How do you see the
impact on fundamental rights of the above-mentioned
measures and which safeguards would be necessary to avoid undue interference
with fundamental rights?