Brussels, 06 March 2020
WK 2669/2020 INIT
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ENFOPOL
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WORKING PAPER
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WORKING DOCUMENT
From:
General Secretariat of the Council
To:
Delegations
Subject:
Proposal for a Regulation on preventing the dissemination of terrorist content
online - drafting proposals from EC following technical meeting with EP on 3
March 2020
WK 2669/2020 INIT
JAI.1 ACA/eb
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TCO - Drafting Proposals
Article 1: Scope of the regulation
Compromise text for new para in Article 2:
“When determining whether an item of information provided by a content provider constitutes
‘terrorist content’ within the meaning of point (5) of paragraph 1, account shall be taken in particular
of the freedom of expression and information, the freedom of the arts and sciences as well as the
freedom and pluralism of the media, in order to ensure that information disseminated for
educational, journalistic, artistic or research purposes or for the purposes of preventing or countering
terrorism is adequately protected in accordance with Union law.”
Article 2: Definition of terrorist content
Compromise text for article 2(5) c)
Changes compared to EP proposal in red
(5) 'terrorist content' means one or more of the following material:
c) soliciting a person or a group of persons to participate in the activities of a terrorist group
within
the meaning of Article 2(3) of Directive (EU) 2017/541, including in relation to supplying
information or material resources, funding its activities in any way within the meaning of Article
4 of Directive (EU) 2017/541
, or otherwise supporting its activities.
Article 4 and 4a: cross border removal orders
The following provisions should be understood as addressing concerns against cross border removal
orders (including the risk of diverging or excessive interpretations of what constitutes terrorist
content, redress possibilities for affected parties and more generally the role of the host MS), while
keeping in mind the overall objective of the provision, namely to have an effective tool to ensure the
swift removal of terrorist content that is disseminated at a large scale across many platforms and
affecting the security interests throughout Europe, the protection of fundamental rights and the
need to provide legal certainty:
1.
Overall
strengthening of fundamental rights safeguards, including the protection of
content with artistic, journalistic etc purposes (see above);
2.
A
uniform definition of terrorist content aligned to the Terrorism Directive (see
remaining issue re “promotion” above);
3.
Further
guarantees for the issuing/competent authorities to ensure impartial decisions
in full respect of fundamental rights.
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TCO - Drafting Proposals
Compromise text for Articles 12 and 17
Article 12: Capacities of the competent authorities
“Member States shall ensure that their competent authorities have the necessary capability and
sufficient resources to achieve the aims and fulfil their obligations under this Regulation in a manner
that is objective, non-discriminatory and in full respect of fundamental rights.”
Article 17: Designation of competent authorities
Each Member State shall designate one or more judicial authorities, functionally independent
administrative authorities or authorities subject to regular independent review in relation to the
tasks performed under this Regulation competent to:
[point (a) to (d)]
However, as regards point (a), Member States shall ensure that a single authority is competent to
issue removal orders pursuant to Article 4.
4.
Reinforcing the role of the host MS by clarifying that they may in addition to security
interests also evoke fundamental rights concerns with the issuing Member State, either
on their own initiative or following a complaint by the HSP that has received a removal
order from another MS. This latter aspect will also strengthen the effective exercise of
rights of the HSPs
Compromise text for
Article 4a
Request from the host Member State for reassessment
(1) Where the competent authority issuing a removal order is not the competent authority of the
Member State in which the main establishment of the hosting service provider is located, the former
competent authority shall transmit a copy of the removal order to the latter competent authority and
to Europol, at the same time as it transmits the removal order to the hosting service provider in
accordance with Article 4(5).
(2) Where the competent authority of the Member State in which the main establishment of the
hosting service provider is located has reasonable grounds to believe that the removal order unduly
limits the exercise of fundamental rights set out in the Charter of Fundamental Rights, it shall request
the issuing competent authority to reassess the removal order, and inform the hosting service
provider concerned, accordingly.
(3) Upon having received such a request, the competent authority issuing the removal order shall,
without undue delay, reassess the removal order and shall, where necessary, withdraw or adapt it. It
shall inform the competent authority of the Member State in which the main establishment of the
hosting service provider is located, as well as the hosting service provider concerned, of the decision
taken and the reasons for that decision.
(4) Hosting service providers having received a removal order from a competent authority other than
the competent authority in which its main establishment is located shall be entitled to request the
latter authority to initiate the procedure referred to in paragraph 2.
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TCO - Drafting Proposals
5.
Judicial redress possibilities in Article 9a (as proposed by the EP) as well as strengthened
complaint procedures
6.
In addition to transparency requirements for competent authorities in article 8a (as
proposed by the EP) make use of Europol’s role to support MSs and issue yearly reports
on how removal orders have been used.
Additional paragraph to Article 13
(5) On the basis of the copies of the removal orders transmitted to it in accordance with Article 4a(1),
Europol shall provide an annual report , including an analysis of the types of content subject to
removal orders transmitted to the hosting service providers pursuant to this Regulation.
“Specific measures” Article x
Compromise text (in bold EP proposed changed compared to original COM proposal; in bold
underlined or strike through new proposals)
1. Hosting service providers shall include in their terms and conditions, and apply, provisions to
address the misuse of their service for the dissemination of terrorist content online. They shall do so
in a diligent, proportionate and non-discriminatory manner, and with due regard in all circumstances
to the fundamental rights of the users and take into account the fundamental importance of the
freedom of expression and information in an open and democratic society and with a view to
avoiding the removal of material which is not terrorist content.
2. Where a hosting service provider is exposed to terrorist content in accordance with paragraph 4,
it shall take specific measures to protect their services against the dissemination of terrorist content.
Those measures may include, in particular, one or more of the following:
(a)
easily accessible and user-friendly mechanisms for users to report or flag to the hosting
service provider alleged terrorist content or other mechanisms to increase the awareness of alleged
terrorist content on its services, including user moderation;
(b)
technical means or operational measures mechanisms to detect, identify and expeditiously
remove or disable access to content that is considered terrorist content, including content which has
previously been removed or to which access has been disabled because it is considered to be
terrorist content;
(c)
mechanisms addressing the reappearance of content which has previously been removed or
to which access has been disabled because it is considered to be terrorist content. any other measure
that the hosting service provider considers appropriate to address the availability of terrorist
content on its services.
The decision as to the choice of tools remains with the hosting service provider, provided that the
requirements resulting from this Regulation and in particular para 3 are met.
3.
Any specific measure or measures that a hosting service provider takes pursuant to
paragraph 2 shall meet all of the following requirements:
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TCO - Drafting Proposals
(a)
they shall be effective in mitigating and managing the level of exposure to terrorist content;
(b)
they shall be targeted and proportionate, taking into account, in particular, the seriousness
of the level of exposure to terrorist content as well as the technical and operational capabilities,
financial strength, the number of users of the hosting service provider and the amount of content
they provide;
(c)
they shall be applied taking full account of the rights and legitimate interest of the users, in
particular users’ fundamental rights to freedom of expression and of information, to respect for
private life and to protection of personal data;
(d)
they shall be applied in a diligent and non-discriminatory manner;
(e) where they involve the use of automated tools, appropriate safeguards shall be provided to
ensure accuracy and to avoid the removal of information that is not terrorist content, in particular
through human oversight and verification.
4.
For the purposes of paragraph 2, a hosting service provider shall be considered to be exposed
to terrorist content, where the competent authority of the Member State of its main establishment
has informed the hosting service provider, through a decision based on objective factors, such as the
hosting service provider having received two or more non contested final removal orders in the
previous 12 months that it considers the hosting service provider to be exposed to terrorist content.
5.
After having received the decision referred to in paragraph 4 and, where relevant, paragraph
6, a hosting service provider shall report to the competent authority on the specific measures it has
taken and that it intends to take in order to comply with the requirement laid down in paragraphs 2
and 3. It shall do so within three months of receipt of the decision and thereafter on an annual basis
thereafter.
6.
Where, based on the reports referred to in paragraph 5 and, where relevant, any other
objective factors, the competent authority considers that the measures that a hosting provider has
taken do not meet the requirements of paragraphs 2 and 3, the competent authority shall address a
decision to the hosting service provider requiring it to adjust those measures or to take certain
additional the necessary measures so as to ensure that those requirements are met. The decision as
to the choice of tools remains with the hosting service provider, provided that the requirements
resulting from this Regulation and in particular para 3 are met.
7. A hosting service provider may, at any time, request the competent authority to review and, where
appropriate, adjust or revoke the decisions referred to in paragraphs 4 and 6. The competent
authority shall, within three months a reasonable time period of receipt of the request, take a
reasoned decision based on objective factors on the request and inform the hosting service provider
accordingly.
8.
Any requirement to take measures pursuant to this Article shall not entail a general
obligation on hosting services providers to monitor the information which they store, nor a general
obligation to actively seek facts or circumstances indicating illegal activity.
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TCO - Drafting Proposals
Judicial redress
In order to integrate references to judicial redress (proposed by EP in relation to specific measures
pursuant to a new article x), it is proposed to amend Article 9a as follows:
Article 9a
Content providers, whose content has been removed or access to which has been disabled following
a removal order, and hosting service providers that have received a removal order pursuant to Article
4, or a decision pursuant to Article X( [para 4), (6) and (7)] shall have a right to an effective remedy.
Member States shall put in place effective procedures for exercising this right.
Sanctions under Article 18
The fact that smaller companies may not be able to comply with the removal order in 1h will be
taken into account under the sanctions. In addition to the criteria that already include gravity
duration, intention, financial strength, the EP proposes a reference to the nature and size of the
company (see AM 140). Article 18(2) could be further amended to clarify that the criteria are not
only relevant when determining the nature and level of the penalty but also when deciding whether
or not to impose a penalty at all.
Article 18 (2)
Member States shall ensure that, when deciding whether to impose a penalty and when
determining the type and level of penalties, the competent authorities take into account all relevant
circumstances, including:
(a) the nature, gravity, and duration of the breach;
(b) the intentional or negligent character of the breach;
(c) previous breaches by the legal or natural person held responsible;
(d) the financial strength of the legal or natural person held liable;
(e) the level of cooperation of the hosting service provider with the competent authorities;
EP AM 141
(e a)
the nature and size of the hosting service providers, in particular for microenterprises or
small-sized enterprises within the meaning of Commission Recommendation 2003/361/EC.
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Document Outline