Ref. Ares(2020)694221 - 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 Domestic legislation that regulates Judicial Cooperation
procedures
Requests for terrorist cases, including Mutual Legal Assistance
Requests and for the sharing of Digital Evidence.
i. Law 144/1999, of 31 of August (International cooperation
in criminal matters).
ii. Law 109/2009, of 15 of September (Law on cybercrime)
iii. Law 32/2008, of 17 of July (Law on electronic
communications data preservation).
iv. Law 67/1998, of 26 of October (Law on personal data
protection).
v. Law 36/2003, of 22 of August (Status and competence of
the national member of EUROJUST).
vi. Law 37/2008, of 06 of August (Legal and functional status
of the Judiciary Police).
vii. Decree-Law 42/2009, of 12 of February (Law establishing
the Judiciary Police units competencies)
viii. Law 52/2003, of 22 of August (Counter-Terrorism Law)
Transparency rules
Safeguards
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 main institutions involved in the fight against terrorism are the following: The Public
Prosecutors are responsible for the criminal investigation and prosecution of all crimes.
However, the criminal investigation could be delegated to the Judiciary Police (Polícia
Judiciária) which perform
s its tasks under the direction and supervision of the Public
Prosecutor in charge of the criminal inquiry. According to the Status of the Public Prosecution
Service, the Central Department for Criminal Investigation and Prosecution (Departamento
Central de Investigação e Ação Penal - DCIAP) is the responsible body to direct the inquiry
and carry out the prosecution of terrorism offences, whenever the criminal activity occurs in
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
regions pertaining to different judicial districts. The DCIAP is also competent when the
Attorney General considers that a centralized direction of the investigation is required, taking
into consideration the seriousness of the crime, the particular complexity or the extent of the
criminal activity throughout the national territory or extraterritorially. The Judiciary Police
which is the law enforcement organ competent for the investigation of terrorism offences in
Portugal, holds within its structure, a special unit devoted to the fight against terrorism —
the Counter-Terrorism National Unit (Unidade Nacional Contra Terrorismo - UNCT).
Concerning counter online radicalization and recruitment to terrorism, the Counter-
Terrorism National Unit (Unidade Nacional Contra Terrorismo - UNCT) is the national contact
point of EU IRU being responsible for the referral of violent extremist content located in
Portugal.
On a general perspective, Decree-Law 7/2004, of 7 January (which transposed e-Commerce
Directive in Portugal) stipulates that competent authorities, within their given sectors (or
ANACOM, as central supervisory authority, only if and where no sectoral competent
authority exists) have the powers:
a) to order the blockage of access and/or removal of webpages, subject to and in accordance
with any specific legal regime providing for such power; and
b) to provisionally solve (within 48 hours) conflicts between any party interested in the
removal/maintenance of a given content and a the relevant hosting or content aggregation
service provider.
Concerning the co-operation with the private sector, ANACOM, both in the context of the
legal framework of the Electronic Communications Law and in accordance with its Statute,
has among its roles the promotion of technical standardization in the electronic
communications sector and related areas, in particular in collaboration with other
organizations.
In this context, ANACOM promotes the debate on the standardization of work in the area of
security of information systems, in specific in what regards electronic communications by
involving sector representatives.
ISPs, even if they are not under a legal obligation, are members of CERT.PT. The purpose of
CERT.PT is that of improving efficiency in regard to the reaction to cybersecurity incidents in
Portugal, by means of facilitating the share of relevant information, coordinating mitigation
and resolution actions within the involved several entities, and the remaining national and
international authorities.
Do you consider them
sufficient in terms of preventing accessibility of terrorist
content? What are the limitations?
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
3
Please indicate the basis for your assessment. What do you think has contributed to
this trend?
EU IRU works in increased reporting on referrals. Europol supports a network of national
IRUs to promote co-operation, co-ordination and the exchange of knowledge and best
practices on referral capabilities.
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 high risk of interference. One way could be having coordination of investigations
through EUROPOL.
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?
4
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?
Yes, there was some progress but it does not guarantee all the OSP efforts
effectiveness.
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)?
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)
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
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.
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)
2
More detailed requirements on transparency and reporting
More detailed requirements to companies on safeguards against over-removal
1
Establishment of an external audit/monitoring mechanism
4
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?
4 See point 40 of the Recommendation.
5
5. Which further actions could be taken to secure participation from those
companies
who have
not engaged?
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?
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
X No, it should be reinforced as presented above to obtain sufficient guarantees
No, it should be reinforced via legislation
II.
Legislative options
1. Why would you consider
legislation necessary at this time? What would be the
concrete benefits? What
risks could legislation entail?
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:
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
To what extent should material produced by UN/EU designated terrorist organisations
be included?
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?
8