Ref. Ares(2020)673327 - 03/02/2020
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, available
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.
1 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-1183598_en
1
Questions
I.
Problem and baseline scenario
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 Informing EU IRU on terrorist content
procedures
Transparency rules
n/a
Safeguards
n/a
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)?
Counter Terrorism Service of Croatian General Police Directorate is responsible for
referrals of terrorist content.
Do you consider them
sufficient in terms of preventing accessibility of terrorist
content? What are the limitations?
As the Republic of Croatia is not one of the MS affected with terrorism as well as
online radicalization issues, national IRU point of contact is sufficient for referring of
terrorist related content.
2. Do you consider that the
amount of terrorist content online in the last [two] years
has overall
Decreased substantially
X
Decreased
Continued at the same level
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
2
Increased
Increased substantially
Please indicate the basis for your assessment. What do you think has contributed to
this trend?
Implementation of the proactive measures by Internet companies as well as number of
activities in MS resulted in decreased number of reported terrorist content.
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?
There is a risk of removal terrorist related contents that may be related to ongoing
investigations. Further discussion on mitigating measures should be established.
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?
For contents removed by companies and platforms there should be implemented a
mechanism of temporary removal. All temporary removed contents should be
subjected to evaluation before full removal.
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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?
According national reports on decreasing of the amount of terrorist content online,
cooperation under EUIF is sufficient.
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)?
Memorandum of Understanding between companies and MS on illegal online content
could improve further activities.
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)
4
More specific objectives for companies’ actions (e.g. request a certain
percentage of content taken down within a certain time limit)
Stronger commitments in terms of internal processes and resource allocation
(e.g. to have certain procedures in place, conduct risk assessments and establish
4
mitigating procedures, content of Terms of Service, training, capacity to detect
content in different languages)
Standardised working arrangements between companies, law enforcement and
Europol to enhance understanding of how platforms are abused, to improve
4
referral mechanism, avoiding unnecessary duplication of efforts, facilitating
requests from law enforcement agencies in relation to criminal investigations4.
Stronger commitment on specific proactive and preventive measures (i.e. further
development and participation in industry-led schemes, such as the database of
5
hashes developed in the context of the EUIF)
4
More detailed requirements on transparency and reporting
4
More detailed requirements to companies on safeguards against over-removal
3
Establishment of an external audit/monitoring mechanism
Establishment of contact points, both in companies and Member States, to
facilitate referrals (and feedback) and requests from law enforcement authorities
5
in relation to criminal investigations.
5
Additional support (e.g. by Europol) to referral capacities in Member States
4 See point 40 of the Recommendation.
4
4. What other additional measures could be developed within a reinforced voluntary
approach?
All additional measures should be discussed and implemented in cooperation with
companies.
5. Which further actions could be taken to secure participation from those
companies
who have
not engaged?
EC should invite other companies of interest to EUIF meetings.
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?
Additional measures for support of small companies and start-ups in tackling terrorist
content online should be taken by companies and public authorities.
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:
Yes
X No, it should be reinforced as presented above to obtain sufficient
guarantees
No, it should be reinforced via legislation
III.
Legislative options
1. Why would you consider
legislation necessary at this time? What would be the
concrete benefits? What
risks could legislation entail?
At this time building a new legal framework is not necessary. One of the risks
regarding legislation is inability to cover all future modus operandi of misuse Internet
for terrorist purposes.
5
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
X Other, please elaborate: Promotion of terrorist organizations
To what extent should material produced by UN/EU designated terrorist organisations
be included?
All UN/EU designated terrorist organizations have to be included in measures.
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
General requirement for companies to put the necessary measures in place to
ensure that they do not host terrorist content (complemented by self
5
regulation)
4
Specific requirements in terms of action upon referral (including time limit of
one hour)
4
More explicit and detailed obligations to deploy specific proactive measures
(including automatic detection)
5
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
5
Clarify that companies engaged in proactive measures benefit from the
liability exemption (Good Samaritan clause)
Requirement to Member States to increase referral capabilities, quality criteria
for referrals and for referral entities in Member States to provide relevant
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
6
4
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
4
Reporting obligations for companies6
4
Transparency requirements for companies vis a vis their users7
4
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?
Minimum requirements could be complemented in companies terms of service.
4. What
other additional measures could be developed within legislation?
All other measures should be discussed in cooperation with companies.
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?
Only hosting service providers within the meaning of the Directive on electronic
commerce.
6 See point 41 of the Recommendation.
7 See points 16 and 17 of the Recommendation.
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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 could be exempted from proactive measures but they should
cooperate with big companies and MS.
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?
For contents removed by companies and platforms there should be implemented a
mechanism of temporary removal. All temporary removed contents should be
subjected to evaluation before full removal.
8