Ref. Ares(2020)694714 - 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, 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 Firstly, there are no “duty of care” for online service
procedures
providers. Instead, accountability for terrorist content is
aimed at the subject that is responsible for uploading or
disseminating the terrorist content onto the internet.
Provisions and arrangements under national law:
1) In accordance with the Danish Administration of
Justice Act and the Danish Penal Code, Danish
Authorities can seize and confiscate a website, if
it is used for illegal activities. This also applies to
websites that spread terrorist propaganda.
Particularly websites used to promote terrorism or
the explicit condoning of terrorist actions or the
financing of terrorism etc.
2) The Danish Administration of Justice Act also
enables the Danish Authorities to block websites,
if it is used for actions that are covered by the
Danish Penal Codes provisions on terrorism,
including the explicit condoning of terrorist
actions, the promotion of terrorism, financing of
terrorism etc.
3) The Danish National Police is also working on
establishing a cooperation with the internet
service providers in Denmark in order to
implement an internet blocking filter that will
enable blocking of the access from Denmark to
websites that contain terrorist propaganda etc.
Transparency rules
N/A
Safeguards
1+2) The invasive measures as well as the confiscation of
websites can only be effectuated by court order.
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
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)?
The Danish Security and Intelligence Service (DSIS) has recently established an
Internet Referral Unit (IRU). The unit is tasked with identifying extremist content
online and is currently working on establishing the legal framework and working
arrangements with online service providers (OSP’s), internet service providers (ISP’s)
and the EU IRU.
If the content is considered to be terrorist content, DSIS will request (cannot demand)
the hosting service providers to remove the specific content as it presumably is illegal
according to Danish law. If an online platform’s terms of service has some sort of
regulations prohibiting such content DSIS will also refer the content with reference to
the terms of service.
Do you consider them
sufficient in terms of preventing accessibility of terrorist
content? What are the limitations?
At this stage, it is not possible to evaluate the sufficiency of the legal basis etc., as our
experience in this field is still quite limited.
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
Increased
Increased substantially
Please indicate the basis for your assessment. What do you think has contributed to
this trend?
The DSIS assesses that the amount of terrorist content online has decreased, mainly as
a consequence of a decrease in Islamic State propaganda.
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?
When companies remove illegal content from their platforms on their own initiative,
there will always be a risk of interfering with investigations as well as intelligence
gathering. This could, to some degree, be mitigated if OSP’s had an obligation to
notify law enforcement upon removal of content related to terrorism.
3
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?
The DSIS is aware of cases where OSP's have removed content not deemed illegal in a
Danish context. As the main basis for removal of content from platforms is based on
the OPS’s Terms of Service it is expected that this challenge will persist.
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?
We support the work under the EU Internet Forum and the effort from both the
Commission, member states and online service providers to tackle illegal content
online. We also find that it is preferable to let the effects of the voluntary measures
materialize before deciding on new horizontal measures. As noted above, the removal
of online terrorist content is improving continuously and it will be fruitful to allow
these positive developments to further unfold.
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)?
We support an increased co-operation and coordination between member states,
authorities and online service providers and among online service providers
themselves etc. in order to improve the tackling of online terrorist content.
Furthermore, we urge the online service providers to continue to take responsibility
and further develop the necessary tools in order to tackle terrorist content online most
efficiently. We therefore encourage the providers to continue the development of
the
database of hashes and to development and investment in automated detection and
machine learning.
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)
4
Stronger commitments in terms of internal processes and resource allocation
4
(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)
4
More detailed requirements on transparency and reporting
3
More detailed requirements to companies on safeguards against over-removal
3
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.
3
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?
-
5. Which further actions could be taken to secure participation from those
companies
who have
not engaged?
Further encouragement and technological knowledge sharing from companies that are
already engaged in the EU Internet Forum could secure participation from companies
who have not yet engaged in the EUIF.
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?
In addition to the knowledge sharing and guidance from companies that are already
engaged in the EUIF, it should be highlighted in the promotion of the EUIF that there
is a focus on preventing unnecessary burdens and barriers for especially small and
medium-sized companies.
4 See point 40 of the Recommendation.
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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(3) 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?
To consider possible legislative measures we would first have to go through very
difficult and fundamental deliberations, particularly considerations concerning
possible infringement of the freedom of speech etc.
Instead, we recommend that EUIF continues to develop the voluntary measures and to
monitor the effects of them, including the implementation of the Recommendation,
before deciding on further measures. In addition, we urge the online service providers
to continue to take responsibility and further develop the necessary tools in order to
tackle terrorist content online most efficiently.
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:
-
Recruitment for terrorism
-
Providing training for terrorism
-
Terrorist financing
-
Other, please elaborate:
To what extent should material produced by UN/EU designated terrorist organisations
be included?
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
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-
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)
-
Definition of terrorist content (
see question above)
-
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
regulation)
-
Specific requirements in terms of action upon referral (including time limit of
one hour)
-
More explicit and detailed obligations to deploy specific proactive measures
(including automatic detection)
-
Specific requirements to cooperate with other hosting service providers to
avoid the dissemination across platforms
-
Sanctions in case of non-compliance
-
Exchanges of information with law enforcement to limit any interference with
investigations and to feed into the analysis of terrorist material
-
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
support to companies in case of doubt about qualification as terrorist content
(e.g. through points of contact)
-
Nomination of point of contact within Companies
-
Reporting obligations for companies6
-
Transparency requirements for companies vis a vis their users7
-
Compulsory safeguards, such as the ones in the general chapter of the
Recommendation
-
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?
-
6 See point 41 of the Recommendation.
7 See points 16 and 17 of the Recommendation.
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4. What
other additional measures could be developed within legislation?
-
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?
-
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?
-
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?
Reference is made to the response to paragraph 1 under section III.
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