Proposal for a regulation on preventing the dissemination of terrorist content online and its fundamental rights implications - Opinion of the European Union Agency for Fundamental Rights

FRA Opinion – 2/2019

[Online terrorist content]

Vienna, 12 February 2019

Proposal for a Regulation on preventing the

dissemination of terrorist content online and its

fundamental rights implications

Opinion of the

European Union Agency for Fundamental Rights

TK-01-19-164-EN-N

Luxembourg: Publications Office of the European Union, 2019

PDF ISBN 978-92-9474-244-5

doi:10.2811/818523

Reproduction is authorised, provided the source is acknowledged.

Contents

Acronyms

Opinions

Introduction

1. Enhancing respect for fundamental rights by providing a clear definition of terrorist

content and its dissemination

1.1 Enhancing the foreseeability and clarity of the definition of terrorist content ...................... 17

FRA Opinion 1 ................................................................................................................................................... 19

1.2 Clearly limiting the scope of the proposal to content disseminated in the public ................ 19

FRA Opinion 2 ................................................................................................................................................... 20

1.3 Excluding certain forms of expression from the scope of the proposal .................................. 21

FRA Opinion 3 ................................................................................................................................................... 22

2 Strengthening fundamental rights safeguards on removal orders

2.1 Safeguarding fundamental rights through effective judicial supervision ............................... 23

FRA Opinion 4 ................................................................................................................................................... 25

2.2 Avoiding disproportionate impact on the freedom to conduct a business ............................ 26

FRA Opinion 5 ................................................................................................................................................... 28

2.3 Ensuring additional safeguards in cross-border removal orders by involving the authorities

and courts of the host Member State .............................................................................................. 28

FRA Opinion 6 ................................................................................................................................................... 29

2.4 Providing sufficient information to content providers as a precondition for exercising the

right to an effective remedy ............................................................................................................... 30

FRA Opinion 7 ................................................................................................................................................... 32

2.5 Introducing clear safeguards in relation to preserved content that has been removed or

disabled ..................................................................................................................................................... 32

FRA Opinion 8 ................................................................................................................................................... 33

3 Adjusting the referrals' mechanism to avert unlawful interferences with

fundamental rights

3.1 Strengthening Member States’ obligation to protect fundamental rights online ................. 35

FRA Opinion 9 ................................................................................................................................................... 37

4 Establishing proactive measures that respect the fundamental rights of users and

hosting service providers

4.1 Safeguarding due diligence .................................................................................................................. 38

FRA Opinion 10 ................................................................................................................................................. 40

4.2 Ensuring the right to an effective remedy for hosting service providers against decisions

imposing additional proactive measures ......................................................................................... 41

FRA Opinion 11 ................................................................................................................................................. 42

Acronyms

Charter

Charter of Fundamental Rights of the European Union

CJEU

Court of Justice of the European Union (CJEU is also used for

the time predating the entry into force of the Lisbon Treaty

in December 2009)

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

European Union

Europol

European Union Agency for Law Enforcement Cooperation

ICCPR

International Covenant on Civil and Political Rights

TEU

Treaty on European Union

United Nations

THE EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS (FRA),

Bearing in mind the Treaty on European Union (TEU), in particular Article 6 thereof,

Recalling the obligations set out in the Charter of Fundamental Rights of the European

Union (the Charter),

In accordance with Council Regulation (EC) No. 168/2007 of 15 February 2007

establishing a European Union Agency for Fundamental Rights (FRA), in particular

Article 2 with the objective of FRA to provide the relevant institutions, bodies, offices

and agencies of the Community and its EU Member States when implementing

Community law with assistance and expertise relating to fundamental rights in order to

support them when they take measures or formulate courses of action within their

respective spheres of competence to fully respect fundamental rights

Having regard to Article 4 (1) (d) of Council Regulation (EC) No. 168/2007, with the task

of FRA to formulate and publish conclusions and opinions on specific thematic topics, for

the Union institutions and the EU Member States when implementing Community law,

either on its own initiative or at the request of the European Parliament, the Council or the

Commission

Having regard to Recital (13) of Council Regulation (EC) No. 168/2007, according to

which the institutions should be able to request opinions on their legislative proposals or

positions taken in the course of legislative procedures as far as their compatibility with

fundamental rights are concerned

Having regard to the request of the European Parliament of 6 February 2019 to FRA for

an opinion “on the key fundamental rights implications of the proposal for a Regulation

on preventing the dissemination of terrorist content online (2018/0331 (COD))”,

SUBMITS THE FOLLOWING OPINION:

Opinions

1. Enhancing respect for fundamental rights by providing

a clear definition of terrorist content and its dissemination

FRA Opinion 1: Enhancing the foreseeability and clarity of the definition

of terrorist content

The definition of terrorist content in the proposal draws on definitions of terrorist

offences under Directive (EU) 2017/541 (Terrorism Directive), which are however

construed for the purposes of criminal proceedings. Furthermore, the proposal

deviates from the Directive in important aspects. Article 2 (5) (c) referring to

“promoting the activities of a terrorist group”; (d) referring to “instructing on methods

or techniques for the purpose of committing terrorist offences”; and, in particular, (b)

referring to “encouraging the contribution to terrorist offences”. These all potentially

broaden the concept of terrorist content beyond that foreseen by the Terrorism

Directive. This gives rise to a risk of unlawful interference with fundamental rights, in

particular the right to freedom of expression guaranteed in Article 11 of the Charter.

To ensure that it will only apply to content which would manifestly fall under the

scope of the Terrorism Directive, the EU legislator should amend proposed Article 2

(5) as follows:

“(5) ‘terrorist content’ means information which, in a manifest manner:

(a) incites or advocates, including by glorifying, the commission of terrorist

offences, thereby causing a danger that such acts be committed;

(b) promotes the activities of a terrorist group, in particular by inciting,

soliciting or advocating persons or a group of persons to participate in the

activities of a terrorist group, including by supplying information or material

resources, or by funding its activities in any way; or

weapons or noxious or hazardous substances, or on other specific methods or

techniques, for the purpose of committing, or contributing to the commission

of, terrorist offences.”

FRA Opinion 2: Clearly limiting the scope of the proposal to content

disseminated in the public

Unlike the Terrorism Directive which covers content disseminated to the “public”, the

proposal applies to any content that becomes “available to third parties”. This broad

formulation means that the Regulation could be interpreted as applying to private

communication – emails, private messaging and cloud infrastructure services – which

would represent a disproportionate and unjustified interference with the freedom of

expression and information under Article 11 of the Charter and the right to private and

family life under Article 7 of the Charter.

The EU legislator should ensure that the proposed Regulation does not apply to

expression which does not enter the public domain, disproportionately interfering

with the rights to freedom of expression and private life and correspondence of

internet users at large. Accordingly, the EU legislator should consider:

 replacing in Recital (10) the term “third parties” with “the public”;

 replacing in Article 2 (1) and (6) the term “third parties” with “the public”;

 adding the term “public” before “dissemination” in Article 1 (1) (a).

FRA Opinion 3: Excluding certain forms of expression from the scope of

the proposal

The preamble of the proposal acknowledges the need to ensure that certain protected

forms of expression are respected. Nevertheless, the proposal lacks provisions that

would explicitly oblige competent authorities and courts to exclude dissemination of

content for legitimate purposes, notably informing the public of matters of public

interest and promoting education, academic and scientific research, or literary or

artistic expression.

The EU legislator should ensure that forms of expression such as journalistic,

academic and artistic expression are adequately protected, such as by considering

introducing in Article 1 of the proposal a new paragraph (3), in line with Recital (9),

providing that “Content disseminated for educational, journalistic, artistic or

research purposes or awareness raising activities against terrorism is excluded.”

2. Strengthening fundamental rights safeguards on removal

orders

FRA Opinion 4: Safeguarding fundamental rights through effective judicial

supervision

Removal orders as regulated in Article 4 of the proposal require hosting service

providers to remove or disable access to content identified by the competent authority

as terrorist. The proposal does not guarantee any type of involvement of an

independent judicial authority in the adoption or prior to the execution of the removal

order. At the same time, neither the content provider nor the hosting service provider

are afforded a mechanism to effectively challenge the order before the removal is

carried out. Combined with the limitations on access to an effective remedy once the

removal has already taken place, this offers insufficient protection to the rights at

stake, in particular freedom of expression and information and freedom to conduct a

business under Articles 11 and 16 of the Charter.

In order to ensure that removal orders are always based on an independent and

impartial assessment, the EU legislator should prescribe that the competent

authority responsible for issuing removal orders be an independent judicial

authority.

Alternatively, the EU legislator could consider:

 amending Article 4 (1) by stating that where the competent authority is not

a judicial authority, or where the removal order is not based on a judicial

authority’s decision, the removal order addressed to the hosting service

provider shall be at the same time submitted for review to an independent

judicial authority determined in accordance with national law; this judicial

authority shall notify the competent authority and the hosting service

provider of its decision within twenty-four (24) hours from the receipt of the

removal order;

 adding in Article 4 (2) that where the judicial authority conducting a review

pursuant to paragraph (1) issues a decision that does not confirm the

removal order’s legality, the competent authority shall ensure the

immediate restoration of such content, provided it has already been

removed or access to it disabled.

FRA Opinion 5: Avoiding disproportionate impact on the freedom to

conduct a business

The proposed rules for the implementation of removal orders will have considerable

implications on the operation of hosting service providers. The time limit of one hour

to comply with the removal order, which applies to all host service providers and any

content – irrespective of whether it poses an imminent threat – is significantly stricter

than the current practice among EU Member States. It may represent a

disproportionate restriction to the freedom to conduct a business under Article 16 of

the Charter, especially with regard to smaller businesses. It could also lead to

automation in the processing of removal orders, with a further negative impact also

on the freedom of expression and information of users under Article 11 of the Charter.

In order to avoid disproportionate impact of removal orders on the operation of

hosting service providers and the risk of further negative effects on fundamental

rights, the EU legislator should consider:

 amending Article 4 (2) of the proposal as follows: “Hosting service providers

shall remove terrorist content or disable access to it within twenty-four (24)

hours from receipt of the removal order. In exceptional circumstances where

the competent authority stipulates in the removal order that the particular

content poses an imminent threat, hosting service providers shall remove

terrorist content or disable access to it within a period shorter than twenty-

four (24) hours from receipt of the removal order. The period shall be

specifically defined by the competent authority in the removal order; and it

cannot be less than one hour from receipt of the removal order, taking into

account the time zone, working days and hours of the addressee hosting

service provider.”

 amending Article 4 (4) of the proposal to provide that the detailed statement

of reasons should contain, where applicable, also the reasons which require

removing of the content or blocking access to it within less than twenty-four

hours.

FRA Opinion 6: Ensuring additional safeguards in cross-border removal

orders by involving the authorities and courts of the host Member State

In cases of cross-border removal orders, the proposal creates a system in which an

order issued by one Member State cannot be challenged in the Member State in which

the hosting service provider is established (or in which it has a designated legal

representative). In line with the basic principles of territorial jurisdiction and related

ECtHR case law, the host Member State must be empowered to review the removal

order in cases where there are reasonable grounds to believe that fundamental rights

are impacted within its own jurisdiction. At the same time, in line with the right to an

effective remedy enshrined in Article 19 TEU and Article 47 of the Charter, each natural

or legal person has the right to an effective remedy before the competent national

tribunal against any of the measures which can adversely affect the rights of that

person. Accordingly, the right should include the possibility for hosting service

providers and content providers to effectively contest the removal orders before

a court of the host Member State, where it is different from the issuing Member State.

The EU legislator should ensure that cross-border removal orders are regulated in

a manner which provides sufficient safeguards to the affected fundamental rights,

including by providing access to an effective remedy. The EU legislator should

address this explicitly in the relevant substantive provisions by:

 requiring the issuing Member State to notify competent authorities in the

host Member State, alongside the hosting service provider, of the removal

order when it is issued;

 introducing additional safeguards to ensure access to an effective remedy, by

providing in substantive articles for the possibility of effectively challenging

the removal order before a competent court of the host Member State.

FRA Opinion 7: Providing sufficient information to content providers as

a precondition for exercising the right to an effective remedy

The proposal does not ensure that the content provider receives a copy of the removal

order, which represents the legal basis for the removal, contains important information

not available through other means, and would be necessary to challenge the measure

effectively before the courts. Neither does it ensure that the content provider is

informed about the available legal remedies against such orders. Therefore, the

proposal does not guarantee that content providers have full knowledge of all relevant

facts needed to decide whether and on what grounds they will challenge the removal

order. As a result, the proposed Regulation does not provide for minimum safeguards

ensuring the effectiveness of a remedial action and legal scrutiny by judicial bodies in

line with Article 47 of the Charter.

The EU legislator should ensure that the content provider can receive, at the latest

after the removal or disabling of access to the content, a copy of the removal order

and information about available legal remedies to effectively exercise its right under

Article 47 of the Charter. For this reason, the EU legislator should consider amending:

 Recital (26) fifth sentence, to state: “Further information about the reasons

for the removal, as well as a copy of the removal order and information of

the possibilities for the content provider to contest the decision before a court

should be given upon request.”

 Article 4 (4), to state: “Upon request by the hosting service provider or by the

content provider, the competent authority shall provide a copy of the

removal order including a detailed statement of reasons, and any information

about the available legal remedies to appeal against removal orders before a

court, without prejudice to the obligation of the hosting service provider to

comply with the removal order within the deadline set out in paragraph 2.”

 Article 11 (2) to add the following: “[...] and shall provide him or her with a

copy of the removal order issued according to Article 4 upon request.”

FRA Opinion 8: Introducing clear safeguards in relation to preserved

content that has been removed or disabled

Article 7 of the proposal envisages that data preserved following removal orders may

later be accessed for investigatory or prosecutorial purposes. Nonetheless, it does not

require that such access depend upon prior review by a court or independent

administrative body. The proposal also does not clearly stipulate the requirement to

erase any data preserved following their preservation period. According to the CJEU

and ECtHR jurisprudence, sufficiently clear rules are required to safeguard the rights to

personal data protection and private life under Articles 7 and 8 of the Charter.

The EU legislator should accompany the requirement for hosting service providers to

preserve content that has been removed or disabled as a result of a removal order

with sufficiently specific safeguards. For this reason, the EU legislator should

consider:

 stating in Recital (23) that “Member States should lay down clear and precise

rules indicating in what circumstances and under what conditions competent

national authorities can access the preserved content and any related data.

Access to such content and data must be subject to a prior review by a court

or independent administrative body, except in cases of validly established

urgency.”

 adding a sentence at the end of Article 7 (1) stating that ”Except in cases of

validly established urgency, access to terrorist content and related data for

any of the purposes under point (b) shall be authorised only after a prior

review by a court or other independent administrative authority according to

national legislation.”

 adding a new second sentence in Article 7 (2) stating that “Related data

preserved shall be erased after this period.” The same requirement could be

reflected in Recital (22).

3. Adjusting the referrals' mechanism to avert unlawful

interferences with fundamental rights

FRA Opinion 9: Strengthening Member States’ obligation to protect

fundamental rights online

The proposal does not sufficiently justify the necessity of introducing the mechanism

of referrals under Article 5 through which competent authorities could instruct hosting

service providers to assess specific content against their terms of service and

community standards, and potentially remove it. If they are introduced alongside other

measures in the proposal, particularly mandatory removal orders, without clearly

distinguishing the circumstances in which they should be used, it carries the risk of

expanding the scope of what is understood as terrorist content, blurring the

responsibility for assessing the online content and undermining the legal certainty

regarding liability of hosting service providers. These implications, together with the

proposed system of penalties, could lead to a chilling effect on the freedom of

expression and information protected under Article 11 of the Charter.

The EU legislator should introduce clear rules to distinguish between content that

would justify issuing a removal order, and other terrorist content which would

require resorting to a referral.

Furthermore, the EU legislator should consider omitting the reference to Article 5 and

referrals in Article 18 (1) (c) requiring Member States to introduce penalties upon

hosting service providers.

Finally, the EU legislator should consider including a reference to the positive

obligation of the Member States to secure the effective exercise of fundamental

rights and prevent fundamental rights violations in a relevant recital.

4. Establishing proactive measures that respect the

fundamental rights of users and hosting service providers

FRA Opinion 10: Safeguarding due diligence

By introducing in Article 6 a broad obligation upon hosting service providers to apply

proactive measures to assess and potentially remove content and at the same time

making them fully responsible for potential interferences with fundamental rights, the

proposal raises issues of compatibility with the positive obligations of the state under

the Charter. Obligations under the proposed Article 6 may lead to general monitoring

of content, which would not be compatible with online users’ right to freedom of

expression and information pursuant to Article 11 of the Charter. They also carry risks

for the rights to private life and protection of personal data of other persons under

Articles 7 and 8 of the Charter. The impact of enhanced use of automated means and

artificial intelligence software, encouraged by the proposal, would significantly impact

on the rights of freedom of expression and information and non-discriminatory

treatment of online users, also due to the limited reliability of such tools.

The EU legislator should consider deleting Article 6 (1) obliging hosting service

providers to apply proactive measures. A relevant recital should instead refer to the

positive obligation of the Member States to secure the effective exercise of

fundamental rights and prevent fundamental rights violations, including by

providing necessary guidance to hosting services providers to ensure that their

content restricting polices set out in the general terms and conditions pay due regard

to the relevant human rights standards; and underline that the effectiveness of

software used to detect terrorist content should be adequately tested, especially

from a fundamental rights perspective.

The EU legislator should clarify in Article 6 (2) that the provision aims at preventing

the re-appearing of content identical to that previously identified as terrorist, and

removed on the basis of a removal order. Furthermore, it should ensure by amending

Recital (19) that the proposal does not permit any conflict with EU law, namely by

allowing for a derogation from the prohibition of general monitoring obligation, as

enshrined in Article 15 of the E-Commerce Directive.

At the same time, the EU legislator should also clarify in Recital (18) that Article 6 (2)

should not be interpreted as requiring any hosting service provider to whom a

removal order had been addressed to introduce proactive measures, and that the

competent authority referred to in Article 17 (1) (c) should take into account the

level of exposure of the host service providers to terrorist content.

FRA Opinion 11: Ensuring the right to an effective remedy for hosting

service providers against decisions imposing additional proactive measures

The proposal establishes in Article 6 (4) that the competent authority can issue a

decision requiring hosting service providers to take specific additional proactive

measures on a mandatory basis. At the same time, it only provides for a review by the

same competent authority, without requiring that such review should be conducted by

a court, contrary to the minimum requirements for an effective remedy under

Article 47 of the Charter.

The EU legislator should ensure the right to an effective remedy for hosting service

providers against the mandatory imposition of additional proactive measures by

amending Article 6 (5) to state that decisions taken pursuant to Article 6(4) shall be

subject to review by a court.

Introduction

This Opinion by the European Union Agency for Fundamental Rights (FRA) aims to

inform the European Parliament’s position on the legislative proposal for a Regulation

on preventing the dissemination of terrorist content online, presented by the European

Commission on 12 September 2018.

Throughout the text, this FRA Opinion refers to

the legislative text using the wording “the proposal” or “the proposed Regulation”.

According to the Explanatory Memorandum to the proposal, terrorists “misuse the

internet to groom and recruit supporters, to prepare and facilitate terrorist activity, to

glorify in their atrocities and urge others to follow suit.”

The impact assessment

accompanying the proposal points out that availability of online terrorist content can

accelerate radicalisation, recruit terrorist supporters and facilitate or instruct terrorist

activity.

The proposed Regulation follows a set of recently adopted voluntary measures. It

builds on the work of the EU Internet Forum, launched in December 2015 as a

framework of voluntary cooperation between Member States and representatives of

major internet companies to detect and address online terrorist content. The proposal

also operationalises the Commission’s Communication on tackling illegal content

online, towards enhanced responsibility of online platforms.

Finally, it aims to

transform into legally binding provisions some of the elements in the Commission

Recommendation on measures to effectively tackle illegal content online, which sets

up a voluntary framework of action for internet intermediaries.

According to Recital (1) of the proposal, by preventing the misuse of hosting services

for terrorist purposes, the proposed Regulation aims to ensure the smooth functioning

of the digital single market in an open and democratic society. The proposal contains

a definition of ”terrorist content” in Article 2 (5) that is directly linked to the definition

of terrorist offences set out in Directive (EU) 2017/541 on combating terrorism

(Terrorism Directive).

The proposal introduces three specific measures for detecting and removing terrorist

content from online platforms. Each requires a different type of action from the hosting

service providers:

 Removal orders issued by a national competent authority, oblige hosting

service providers to remove the content identified in the order or disable

access to it within one hour from its receipt (Article 4).

European Commission (2018), Proposal for a Regulation of the European Parliament and of the

Council on preventing the dissemination of terrorist content online, 2018/0329(COD), COM(2018)

640 final, Brussels, 12 September 2018.

Explanatory Memorandum to the proposal, p. 1.

European Commission (2018), Commission Staff Working Document - Impact Assessment

Accompanying the Document Proposal for a regulation of the European parliament and of the

Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels,

12 September 2018, p. 16.

European Commission (2017), Commission’s Communication on tackling illegal content online,

towards enhanced responsibility of online platforms, COM(2017) 555 final, Brussels, 28 September

2017.

European Commission (2018), Commission Recommendation of 1.3.2018 on measures to effectively

tackle illegal content online, C (2018) 1177 final, Brussels, 1 March 2018.

European Union (2017), 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, OJ 2017 L 88, 31 March 2018.

 Referrals, which alert hosting service providers about the existence of

potentially terrorist content on their platform. Referrals do not directly oblige

hosting service providers to remove the notified content. However, they

require them to assess the compatibility of such content with their own terms

of service and decide whether to remove it or to disable access to it (Article 5).

 Proactive measures introduced by hosting service providers to facilitate

identification and the removal of terrorist content from their platforms. The

proactive measures should include automated means in certain cases (Article 6).

As noted by the European Commission’s Impact Assessment accompanying the

proposal, the proposed Regulation will have an impact on fundamental rights. The

Agency recognises the importance of the overall goal to prevent the misuse of the

internet by terrorists and acknowledges the important contribution the proposed

Regulation aims to make in this context. However, the Agency also wishes to bring to

the attention of the EU legislator several key fundamental rights concerns that the

proposal raises.

The proposal is based on a broad concept of what constitutes dissemination of terrorist

content online, and transfers a significant share of the responsibility for addressing the

issue to private parties. This shift of responsibility is closely related to the choice of

the legal basis of Article 114 (approximation of laws for the improvement of the

internal market) rather than Article 83 TFEU (judicial cooperation in criminal matters

for the definition of criminal offences) or Article 82 TFEU (Judicial cooperation in

criminal matters – procedures). It has serious implications for internet users as well as

hosting service providers themselves, as it significantly reduces the legal and

procedural safeguards accompanying the measures introduced by the proposed

Regulation. The introduction of co-regulatory and self-regulatory tools, such as

referrals and proactive measures, in conjunction with a general obligation to prevent

dissemination of terrorist content and high penalties, will create an incentive for

hosting service providers to more actively remove content and employ more

automated tools. Such a development would have major implications primarily on

freedom of expression and information but also due process principles in general.

Against this background, this Opinion examines the potential implications of the

proposed Regulation on freedom of expression and information, which is a cornerstone

of democratic society. This right, which also includes the freedom to hold opinions and

to receive and impart information and ideas, is enshrined in Article 11 (1) of the

Charter. Article 13 of the Charter further establishes the right to artistic, scientific and

academic freedom, which is deduced primarily from the right to freedom of thought

and expression.

According to Article 52 (1) of the Charter, any limitation on the

exercise of these freedoms must be provided for by law and respect the essence of

these rights. Such limitations must only be made if they are necessary and genuinely

meet objectives of general interest recognised by the Union or the need to protect the

rights and freedoms of others.

As is evident from Article 52 (3) of the Charter and the Court of Justice of the European

Union (CJEU) jurisprudence, the meaning and scope of this right are the same as those

guaranteed by Article 10 of the European Convention on Human Rights (ECHR)

Explanations Relating to the Charter of Fundamental Rights, OJ 2007 C 303, Explanation on

Article 13, 14 December 2013, p. 22.

covering the freedom of expression

and as interpreted by the European Court of

Human Rights (ECtHR). The limitations, which may be imposed on it, may therefore not

exceed those provided for in Article 10 (2) of the ECHR, including the interests of

national security, territorial integrity and public safety.

The objective of the fight

against terrorism represents such a legitimate limitation.

For example, restrictions on

idealising, condoning or commenting positively on terrorist crimes and terrorists are in

principle justified.

At the same time, manifest incitement to violence, hatred or other

forms of intolerance, which negate the actual values of the ECHR and aim at destroying

the rights and freedoms of others, are excluded from the protective scope of freedom

of expression altogether.

The ECtHR has nevertheless construed this exclusion narrowly, also in the context of

potential terrorist content. The jurisprudence requires that safeguards are in place and

states that difficulties related to the fight against terrorism do not negate the

obligation to ensure freedom of expression; it only permits restrictions that are

necessary and proportionate.

Legislation outlawing such expressions must avoid

excessive interferences with political speech, or public interest debates and criticism

of the authorities that should not be restricted.

In this regard, the ECtHR regularly

reiterated that freedom of expression is applicable not only to “information” or “ideas”

that are favourably received or regarded as inoffensive or as a matter of indifference,

but also to those that offend, shock or disturb the state or any sector of the population.

Such are the demands of pluralism, tolerance and broadmindedness without which

there is no “democratic society”.

The protective scope of freedom of expression

extends beyond the content of information also to the means of its dissemination. This

is because “any restriction imposed on the means necessarily interferes with the right

to receive and impart information”.

The ECtHR has also specifically acknowledged

the important role that the internet plays for the exercise of freedom of expression

facilitating dissemination of information and access by the public.

Apart from freedom of expression and information, there are other fundamental rights

and freedoms provided for in the Charter which will be considerably impacted upon by

the proposed rules. These include the right to respect for private and family life (Article

7) and the right to protection of personal data (Article 8), freedom of thought,

conscience and religion (Article 10), freedom of assembly and of association (Article

12), freedom of the arts and science (Article 13), freedom to conduct a business

(Article 16), non-discrimination (Article 21), the right to an effective remedy and to a

CJEU, Société Neptune Distribution v. Ministre de l'Économie et des Finances, Case C-157/14, 17

December 2015, para. 65.

Explanations Relating to the Charter of Fundamental Rights, OJ 2007 C 303, Explanation on Article

11, p. 21.

ECtHR, Leroy v. France, No. 36109/03, 2 October 2008, para. 36.

ECtHR, Stomakhin v. Russia, No. 52273/07, 9 May 2018, paras. 89, 99-107; Bidart v. France, No.

52363/11, 12 November 2015, paras. 42-43.

ECtHR, Belkacem v. Belgium, No. 34367/14, 27 June 2017, para. 31; Roj TV A/S v. Denmark, No.

24683/14, 17 April 2018, para. 31.

ECtHR, Stomakhin v.Russia, No. 52273/07, 9 May 2018, paras. 107, 117; Belek and Velioğlu

v.Turkey, No. 44227/04, 6 October 2015, para. 25.

ECtHR, Stomakhin v. Russia, No. 52273/07, 9 May 2018, paras. 89, 99-107, 117; ECtHR, Bidart v.

France, No. 52363/11, 12 November 2015, paras. 42-43.

ECtHR, Döner and Others v. Turkey, No. 29994/02, 7 March 2017, para. 98.

ECtHR, Öztürk v. Turkey, No. 22479/93, 28 September 1999, para. 49.

ECtHR, Delfi AS v. Estonia, No. 64569/09, 16 June 2015, paras. 110, 133; ECtHR, Times Newspapers

Ltd (nos. 1 and 2) v. the United Kingdom, Nos. 3002/03 and 23676/03, 10 March 2009, para. 27.

fair trial (Article 47 of the Charter) as well as certain other rights that may arise in the

particular context of criminal proceedings, such as the right not to be tried or punished

twice in criminal proceedings for the same criminal offence (ne bis in idem principle,

Article 50).

In light of the scope of the European Parliament’s request, this Opinion does not cover

all of these rights enshrined in the Charter, which is “addressed to the Member

States […] when they are implementing Union law”

or “when they act in the scope

of EU law”.

It focuses, in a non-exhaustive manner, on several selected fundamental

rights in relation to which the impact of the proposed regime can be expected to be

most significant. On issues with specific impact in the field of privacy and data

protection, this Opinion is without prejudice to a possible dedicated opinion delivered

by the European Data Protection Supervisor.

This FRA Opinion contains 11 individual opinions that relate to the following rights,

namely (in the order of the Articles in the Charter):

 the right to respect for private and family life (Article 7 of the Charter);

 the right to protection of personal data (Article 8 of the Charter);

 the freedom of expression and information (Article 11 of the Charter);

 the freedom to conduct a business (Article 16 of the Charter); and

 the right to an effective remedy and to a fair trial (Article 47 of the Charter).

The Opinion is structured around the main fundamental rights implications connected

to the scope of the proposed Regulation (definition of the terrorist content and its

dissemination) as well as to individual measures proposed (removal orders, referrals

and proactive measures). Given that both issues are closely interrelated, all the specific

safeguards proposed in this FRA Opinion are intended to be mutually complementary

rather than work in isolation.

More specifically and following the order of individual provisions in the proposed

Regulation, Chapter 1 looks at the implications of the definition of terrorist content

used by the proposal, including its relation to terrorist offences, the question of what

constitutes public dissemination, and the need to protect certain forms of expression.

Chapter 2 analyses the fundamental rights implications of the proposed mechanism of

removal orders, including involving an independent judicial authority, time limit for

complying with removal orders, issue of jurisdiction in cross-border cases, the practical

availability of remedies for content providers and the issue of retention of removed

content. Chapter 3 examines the proposed referral mechanism, including the

responsibility for protecting fundamental rights online. Chapter 4 looks at the issue of

due diligence of hosting service providers and the right to judicial protection in the

context of proactive measures.

See Art. 51 of the Charter of Fundamental Rights of the European Union, OJ C 326, 26 October 2012;

FRA (2018), Challenges and opportunities for the implementation of the Charter of Fundamental

Rights, FRA Opinion, 4/2018, Vienna, 24 September 2018.

CJEU, Åklagaren v. Hans Åkerberg Fransson, Case C-617/10, 26 February 2013, paras. 20-21. See

also FRA (2018), Applying the Charter of Fundamental Rights of the European Union in law and

policymaking at national level – Guidance, Luxembourg, Publications Office of the European Union,

pp. 17-18; Hancox, E. (2013), ‘The Meaning of “Implementing” EU Law under Article 51(1) of the

Charter: Åkerberg Fransson’, Common Market Law Review, Vol. 50, pp. 1411-1432.

Enhancing respect for fundamental rights by providing a

clear definition of terrorist content and its dissemination

Article 2 of the proposal defines key terms, including “terrorist content” and

“dissemination of terrorist content”. The definition of terrorist content in paragraph (5)

refers to four types of content. It draws on, as acknowledged in Recital (9) and the

Explanatory Memorandum to the proposal, definitions of criminal offences in the

Terrorism Directive that cover public provocation to commit a terrorist offence,

recruitment and providing training for terrorism.

The formulations used by the

proposal to define the different types of content are however broader than those used

in the Terrorism Directive. In addition, the dissemination of terrorist content in

paragraph (6) is defined by means of its availability to third parties rather than public

availability, which is the approach of the Terrorism Directive.

This Chapter deals with the impact of the proposed definitions on the right to freedom

of expression and information (Article 11 of the Charter). It also takes into account

potential implications of the proposal on content disseminated for specific purposes,

such as those of an educational, journalistic or research nature. Other rights affected

by the proposal, especially the right to private life (Article 7 of the Charter), will also

be touched upon.

Given the relevance of the definitions for the overall scope of the Regulation and the

measures envisaged therein (namely removal orders, proactive measures, referrals),

observations in the subsequent Chapters of this Opinion should be read in conjunction

with the findings of this Chapter.

1.1 Enhancing the foreseeability and clarity of the definition of

terrorist content

According to the jurisprudence of the ECtHR, the definition of “terrorist content” should

be construed as strictly as possible. It should only refer to forms of expression that

manifestly incite, glorify or justify violence, hatred or other forms of intolerance

relating to terrorist activities.

Such expressions must go beyond a mere declaration

of sympathy.

In accordance with the case law, ’terrorist content‘ should be assessed

in light of the context and circumstances under which it is disseminated, taking into

account its possible impact, the means of its dissemination, the authors and their public

influence.

Similarly, the UN Human Rights Committee emphasised that counter-

terrorism measures should not lead to unnecessary or disproportionate interference

with the right to freedom of expression.

The definition of types of content considered to be “terrorist” in Article 2 (5) of the

proposal is based on formulations in the Terrorism Directive which are conceived as

elements of specific criminal offences. This means that the broad definitions in the

Explanatory Memorandum to the proposal, p. 3.

ECtHR, Roj TV A/S v. Denmark, No. 24683/14, 17 April 2018, paras. 46-48; Hizb Ut-Tahrir and Others

v. Germany, No. 31098/08, 12 June 2012, paras. 73-74, 78.

Ibid.

ECtHR, Stomakhin v.Russia, No. 52273/07, 9 May 2018, paras. 93, 131; Bidart v. France, No.

52363/11, 12 November 2015, paras. 35, 45; M’Bala M’Bala v. France, No. 25239/13, 20 October

2014, paras. 37-39.

United Nations (2011), General Comment no. 34 Article 19: Freedom of Opinion and Expression,

para. 46.

Terrorism Directive – such as that of public provocation to commit a terrorist offence

in Article 5 of the Terrorism Directive which serves as a basis for Article 2 (5) (a) and

includes the term “glorification”

– are envisaged to be further refined when the

Directive in transposed into national law and applied in criminal proceedings. Here the

content would be assessed together with all other relevant circumstances of the case.

The full set of specific fair trial guarantees would also apply.

This is not the case of the proposed Regulation. The definitions will be used in the

context of different non-criminal measures (removal orders, referrals and proactive

measures) applied by different entities including private companies. While these

entities will still have to take into account the overall context in order to not to remove

content that is actually legal (e.g. disseminated for educational, journalistic or research

purposes, see Section 1.3), the evidentiary situation and the presence of safeguards

will differ considerably from that for which the definitions in the Terrorism Directive

were conceived. In light of the particular risk for the freedom of expression and

information, this would require refining the definition to cases where the terrorist

nature of the content is manifest.

Furthermore, the definition of terrorist content in the proposal is even broader in some

aspects than the definitions laid down in the Terrorism Directive.

The most ambiguous description of terrorist content is contained in Article 2 (5) (b) of

the proposal. This covers information “encouraging the contribution to terrorist

offences”. Such conduct does not seem to accord with any specific offence under the

Terrorism Directive. It would therefore either overlap with other types of content or

expand the definition of terrorist content beyond what corresponds strictly to offences

criminalised under the Terrorism Directive. In addition, the term “encouraging” is

vague and does not necessarily correspond to a manifest form of expression inciting

to commit a terrorist act or support terrorist activities. Rather, it is susceptible to

varying interpretations based on subjective evaluations. This makes it particularly

likely to result in disproportionate interferences with the freedom of expression, as

guaranteed by Article 11 of the Charter.

Article 2 (5) (c) includes in its scope, the promotion of “activities of a terrorist group,

in particular by encouraging the participation in or support to a terrorist group within

the meaning of Article 2(3) of Directive (EU) 2017/541”. This formulation is broader

than its counterpart, in the Terrorism Directive, namely Article 6 on recruitment for

terrorism in conjunction with Article 4 (b) which covers participation in a terrorist

group. Article 4 (b) of the Terrorism Directive provides a more concrete definition of

participation by specifically including “supplying information or material resources” or

“funding”. It also requires “knowledge of the fact that such participation will contribute

to the criminal activities of the terrorist group”. The proposal in opposition, lacks these

concrete elements delineating participation in a terrorist group. Notably, the open-

ended reference to “support” in proposed Article 2 (5) (c) may result in application to

content that appears to support the same political or other aims as those of a terrorist

group, without the content provider having expressed the slightest sympathy for the

group or its terrorist tactics. This could impact, for example, on peaceful political

campaigning for self-determination or secession, or other contentious political issues.

United Nations (2018), Mandates of the Special Rapporteur on the promotion and protection of the

right to freedom of opinion and expression; the Special Rapporteur on the right to privacy and the

Special Rapporteur on the promotion and protection of human rights and fundamental freedoms

while countering terrorism, OL OTH 71/2018, 7 December 2018, p. 3.

The proposal also includes in its Article 2 (5) (d) information that is “instructing on

methods or techniques for the purpose of committing terrorist offences.” Again here,

the proposal deviates from the wording of the Terrorism Directive by providing a

broader and more ambiguous definition of terrorist content. Its application, particularly

outside the framework of a criminal trial, may therefore significantly increase the

likelihood of capturing also technical, marketing or training materials which are not

related to terrorism. The proposal does not define what can be considered as a

“method” or “technique” for committing terrorist offences and is thereby open to

various interpretations as any type of behaviour can fall under a subjective assessment

of this article. On the contrary, the Terrorism Directive in its equivalent provisions

provides for a stricter and more precisely worded formulation. Its Articles 7 and 8 read:

“instruction on the making or use of explosives, firearms or other weapons or noxious

or hazardous substances, or on other specific methods or techniques, for the purpose

of committing, or contributing to the commission of, one of the [terrorist offences

pursuant to the Directive]”.

FRA Opinion 1

The definition of terrorist content in the proposal draws on definitions of terrorist

offences under Directive (EU) 2017/541 (Terrorism Directive), which are however

construed for the purposes of criminal proceedings. Furthermore, the proposal

deviates from the Directive in important aspects. Article 2 (5) (c) referring to

“promoting the activities of a terrorist group”; (d) referring to “instructing on methods

or techniques for the purpose of committing terrorist offences”; and, in particular,

(b) referring to “encouraging the contribution to terrorist offences”. These all

potentially broaden the concept of terrorist content beyond that foreseen by the

Terrorism Directive. This gives rise to a risk of unlawful interference with fundamental

rights, in particular the right to freedom of expression guaranteed in Article 11 of the

Charter.

The EU legislator should ensure that the proposed Regulation will only apply to

content which would manifestly fall under the scope of the Terrorism Directive. For

this reason, the EU legislator should consider amending proposed Article 2 (5) as

follows:

“(5) ‘terrorist content’ means information which, in a manifest manner:

(a) incites or advocates, including by glorifying, the commission of terrorist

offences, thereby causing a danger that such acts be committed;

(b) promotes the activities of a terrorist group, in particular by inciting,

soliciting or advocating persons or a group of persons to participate in the

activities of a terrorist group, including by supplying information or material

resources, or by funding its activities in any way; or

weapons or noxious or hazardous substances, or on other specific methods or

techniques, for the purpose of committing, or contributing to the commission

of, terrorist offences.”

1.2 Clearly limiting the scope of the proposal to content disseminated

in the public

Article 1 (1) (a) of the proposal defines the subject matter and scope of the new

Regulation which establishes “rules on duties of care to be applied by hosting service

providers in order to prevent the dissemination of terrorist content through their

services”. Article 2 (1) of the proposal defines ’hosting service provider’ as an entity

making “the information stored available to the public”. Proposed Article 2 (6) defines

”dissemination of terrorist content” as the means of making terrorist content available

to third parties, in a manner that covers information society services such as social

media platforms, video streaming services, video, image and audio sharing services,

file sharing and other cloud services. According to Recital (10), any service in which

information is stored at the request of the recipient of the service, or made available

to a third party, falls under the scope of the proposal.

Such a wide formulation could therefore be interpreted to include service providers

that offer services not available to the public. For example, content stored on cloud

services that do not make information publicly available, but allow for the sharing of

uploaded content with another user, or a restricted number of users could be construed

as making content “available to third parties.” This wording therefore arguably lacks

sufficient clarity as to what type of service providers it covers. It could well apply to

business-to-business cloud providers, or any cloud-based service allowing users to

collaborate with a limited private set of users. It could also be applied to providers of

VoIP (Voice over Internet Protocol) or electronic messaging services, including emails

and internet texting as such ‘sound recordings’ are made available to third parties.

The possibility of this broad application, seems to fall short of the objective echoed in

Recital (7) of the proposal which ensures that any interference in the freedom of

expression and information is “strictly targeted.” Similarly, it does not meet the

requirement of establishing “appropriate and robust safeguards to ensure protection

of the fundamental rights”. Outlawing any form of expression, either as a derogation

from the freedom of expression or as a restriction to it, requires an examination of the

content in light of its context and circumstances under which it was made. It requires

an assessment of its potential to lead to harmful consequences, and, in particular, of

its influence and means of dissemination to the wider public.

Therefore, any content

not available in the public sphere cannot logically be the subject to this assessment,

which is required to render it unlawful in and of itself. Any measure aimed at content

distributed privately, would constitute an unprecedented restriction and interference

with the rights of freedom of expression under Article 11, and private life and

correspondence under Article 7 of the Charter.

Moreover, this approach could result in measures being taken on a general and

indiscriminate basis even against people for whom there is no objective evidence that

they participate in, or otherwise support, terrorist activities. In this context, it should

be underlined that the relevant provisions of the Terrorism Directive are restricted

solely to content disseminated (distributed or otherwise made available) to the public,

as the purposes of its measures “on the internet is to remove online content

constituting a public provocation to commit a terrorist offence at its source.”

FRA Opinion 2

Unlike the Terrorism Directive which covers content disseminated to the “public”, the

proposal applies to any content that becomes “available to third parties”. This broad

formulation means that the Regulation could be interpreted as applying to private

communication – emails, private messaging and cloud infrastructure services – which

ECtHR, Stomakhin v. Russia, No. 52273/07, 9 May 2018, paras. 93, 131; ECtHR, Bidart v. France, No.

52363/11, paras. 35, 45; ECtHR, Roj TV A/S v. Denmark, No. 24683/14, 17 April 2018, para. 47.

Directive (EU) 2017/541, Recitals (22) and (23), Article 21.

would represent a disproportionate and unjustified interference with the freedom of

expression and information under Article 11 of the Charter and the right to private and

family life under Article 7 of the Charter.

The EU legislator should ensure that the proposed Regulation does not apply to

expression which does not enter the public domain, disproportionately interfering

with the rights to freedom of expression and private life and correspondence of

internet users at large. Accordingly, the EU legislator should consider:

 replacing in Recital (10) the term “third parties” with “the public”;

 replacing in Article 2 (1) and (6) the term “third parties” with “the public”;

 adding the term “public” before “dissemination” in Article 1 (1) (a).

1.3 Excluding certain forms of expression from the scope of the

proposal

Recital (9) of the proposal underlines that “[c]ontent disseminated for educational,

journalistic or research purposes should be adequately protected. Furthermore, the

expression of radical, polemic or controversial views in the public debate on sensitive

political questions should not be considered terrorist content”. This acknowledgement

reflects ECtHR jurisprudence which requires particular caution to such protected forms

of speech and expression, including also artistic expression.

In particular, the

jurisprudence recognises the right of journalists to report or comment on such unlawful

speech or content, provided they distance themselves and do not espouse it.

Extensive restrictions on journalists “for assisting in the dissemination of statements

made by another person in an interview would seriously hamper the contribution of

the press to discussion of matters of public interest and should not be envisaged unless

there are particularly strong reasons for doing so”.

In addition, the Committee of

Ministers of the Council of Europe has recommended to avoid the universal and

general blocking of illegal content for users who justifiably demonstrate a legitimate

interest or need to access such content under exceptional circumstances, particularly

for research purposes.

However, Recital (9) of the proposal is not reflected in the operative provisions by

providing an exception for such purposes. Indeed, there may well be instances

whereby content that could be classified as ’terrorist’ needs to be disseminated for

journalistic, research, educational or other similar purposes. For example, it is usual for

journalists to report or disseminate parts of content produced by terrorists, usually in

a redacted or further processed form, to inform the public. Appropriate dissemination

of such content can have a dissuasive effect on terrorist activities by informing the

public of their criminal acts and reinforcing public rejection of terrorist activities. The

same applies for research institutions and individuals studying terrorist activities and

providing findings that can inform counter-terrorism policies, as well as for many forms

of literary or artistic expression.

ECtHR, M’Bala M’Bala v. France, No. 25239/13, 20 October 2014, para. 31.

ECtHR, Roj TV A/S v. Denmark, No. 24683/14, para. 42; ECtHR, Jersild v. Denmark, No. 15890/89, 23

September 1994, paras. 33-36.

ECtHR, Jersild v. Denmark, No. 15890/89, 23 September 1994, para. 35.

Council of Europe (2008), Recommendation CM/Rec(2008)6 of the Committee of Ministers to

member states on Measures to promote the respect for freedom of expression and information with

regard to Internet filters, para. III (vi).

The Terrorism Directive also recognises the need to exclude such content in Recitals

(11) and (40) rather than in the operative provisions. This can be, however, explained

by the difference between the two instruments. The Terrorism Directive is applied

during criminal proceedings, where such issues would be considered in relation to

intent (an element not required by the proposal); furthermore the different legal

nature of directives foresees that detailed rules are established as part of the

transposition into the national legal framework. As a regulation, the proposed legal

instrument would not allow for national legislators to introduce such exception clauses

into their national legislation.

In fact, national legislations usually require such exceptions. For example, the German

legislator included similar exceptions in the Criminal Code that apply to offences of

disseminating propaganda material of unconstitutional organisations; encouraging the

commission of a serious violent offence endangering the state; incitement to hatred;

and attempting to cause the commission of offences by means of publication.

Expressing this important principle only in a recital cannot itself ensure that such

protected forms of expression are adequately respected. It also cannot ensure that

content which appears at first unlawful, can be used for legitimate purposes, notably

journalism or research.

FRA Opinion 3

The preamble of the proposal acknowledges the need to ensure that certain protected

forms of expression are respected. Nevertheless, the proposal lacks provisions that

would explicitly oblige competent authorities and courts to exclude dissemination of

content for legitimate purposes, notably informing the public of matters of public

interest and promoting education, academic and scientific research, or literary or

artistic expression.

The EU legislator should ensure that forms of expression such as journalistic,

academic and artistic expression are adequately protected, such as by considering

introducing in Article 1 of the proposal a new paragraph (3), in line with Recital (9),

providing that “Content disseminated for educational, journalistic, artistic or

research purposes or awareness raising activities against terrorism is excluded.”

Germany, Criminal Code (Strafgesetzbuch), 13 November 1998, Article 86 (3) in conjunction with

Articles 86, 91, 130 and 130a, respectively.

2 Strengthening fundamental rights safeguards on

removal orders

Article 4 of the proposal provides for the power of a competent authority of any

Member State to issue a decision requiring the hosting service provider to remove or

disable access to terrorist content. These orders are addressed to hosting service

providers who are under the obligation to comply within one hour. This Chapter

examines the main elements of the removal order mechanism. It looks at the nature

of the issuing body and a lack of a clear requirement for independent and impartial

judicial oversight, including cross-border removal orders; the mandatory nature of the

order; the one-hour limit to remove or block access to content identified as terrorist;

the need to provide sufficient information to content providers and the obligation to

preserve content that has been removed or disabled.

The Chapter addresses fundamental rights challenges in the context of freedom of

expression and information under Article 11 and freedom to conduct a business under

Article 16 of the Charter; the right to respect for private life under Article 7 and the

right to protection of personal data under Article 8 of the Charter, as well as the right

to an effective remedy to potential violations of these rights under Article 47 of the

Charter.

2.1 Safeguarding fundamental rights through effective judicial

supervision

According to Article 11 of the Charter, freedom of expression and information includes

the freedom to hold opinions and to receive and impart information and ideas without

interference by a public authority. As underlined in the Introduction, incitement to

violence is excluded from the protective scope of the freedom of expression.

The

ECtHR has nevertheless construed this exclusion narrowly, also in the context of

potential terrorist content. It requires that safeguards are in place and states that

difficulties related to the fight against terrorism do not negate the obligation to ensure

freedom of expression; and only restrictions that are necessary and proportionate

should be applied.

The ECtHR has emphasised the importance of judicial intervention in cases related to

the freedom of expression to provide a genuine safeguard against abuse.

In Ekin v.

France, the ECtHR ruled that judicial review of administrative publishing bans which

only took place ex post and required an application to court, together with an

excessive length of such review proceedings, provided insufficient guarantees against

abuse.

Also when assessing the nature of online content and the need for its removal,

an independent judicial authority would be best placed to make an impartial decision

to meet public security needs without violating fundamental rights. This is of particular

importance for measures that have an immediate effect on fundamental rights while

a subsequent remedy may have limited restorative effect, such as prolonged

proceedings eventually leading to the restoration of online content.

ECtHR, Belkacem v. Belgium, No. 34367/14, 27 June 2017.

ECtHR, Perinçek v. Switzerland [GC], No. 27510/08, 15 October 2015, para. 197.

See for example ECtHR, Bidart v. France, No. 52363/11, 12 November 2015, paras. 38-41.

ECtHR, Association Ekin v. France, No. 39288/98, 17 July 2001, para 61.

See e.g. Kuczerawy, A., The Proposed Regulation on preventing the dissemination of terrorist

content online: safeguards and risks for freedom of expression, Center for Democracy and

Technology, 5 December 2018, p. 10.

The proposal does not require any involvement of an independent judicial authority in

the issuing of, or prior to the execution of, removal orders, i.e. before the interference

with fundamental rights takes place, to assess its necessity and proportionality. In the

absence of a definition of the ‘competent authorities’, Recital (13) merely states that

“Member States should remain free as to the choice of the competent authorities

allowing them to designate administrative, law enforcement or judicial authorities with

that task.” The Explanatory Memorandum to the proposal underlines this by stating

that the removal order can be issued “as an administrative or judicial decision by a

competent authority in a Member State.”

At the same time, none of the parties involved have a realistic opportunity to initiate

a review of the legality of the order and its interference with fundamental rights prior

to the removal of the content.

As regards the content providers, whose freedom of expression and information is

primarily affected by the removal, the proposal foresees only notifying the removal or

disabling of access that has already taken place, further limited in Article 11 (see also

Section 2.4). While excluding the content provider at this stage might be legitimate in

light of the nature of the public interest involved, it reinforces the need for alternative

safeguards.

The need to protect individuals’ fundamental rights without alerting them to the actual

existence of a security measure in order not to jeopardise a legitimate public interest

is not unique. A parallel could be drawn, for example, with the use of surveillance and

communication interception measures by intelligence authorities outside of the law

enforcement context. In such cases, the ECtHR acknowledged that the very nature and

logic of secret surveillance measures often means that in practice, individuals are

simply not able to effectively seek a remedy of their own accord or to take a direct

part in any review proceedings. In such cases, it is therefore essential to provide some

form of judicial supervision in order to safeguard adequate and equivalent guarantees

for the rights of individuals.

Hosting service providers are also not foreseen by the proposal to make their own

assessment of the removal orders and, where relevant, contest them. Instead, the

proposal foresees their automatic compliance with the measure. The Explanatory

Memorandum states that such orders “would not necessarily require an assessment

on the part of the hosting service providers”.

The Impact Assessment makes the

same argument in relation to costs, stating that costs and burdens for hosting service

providers would be mitigated because the competent authority would assess the

content and providers would not need to invest resources to make the assessment

themselves.

The only exceptions from the mandatory nature of the removal orders foreseen by the

proposal relate to force majeure or other de facto impossibility not attributable to the

hosting service provider (Article 4 (7)), or manifest errors or insufficient information

in the removal order itself (Article 4 (8)). Such “manifest errors” of removal orders

Explanatory Memorandum to the proposal, p. 4.

ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015; ECtHR, Szabo and Vissy v.

Hungary, No. 37138/14, 12 January 2016.

Explanatory Memorandum to the proposal, p. 7.

European Commission (2018), Commission Staff Working Document – Impact Assessment

Accompanying the Document Proposal for a regulation of the European parliament and of the

Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels,

12 September 2018, pp. 42 and 103.

apparently do not extend to the potential erroneous assessment of the content as

“terrorist” by the competent authority, as hosting service providers will not be

provided with sufficient information about the assessment. Although Article 4 (3) (b)

requires the authority to state why the content is considered terrorist, this can be

limited to referring to one of the broadly conceived categories listed in Article 2 (5)

(see Section 1.1). The competent authority has the obligation to give a detailed

statement of reasons, only in cases where the hosting service provider or the content

provider so request. Pursuant to proposed Article 4 (4), this does not, however,

suspend the one-hour limit for complying with the removal order.

This means that even when hosting service providers consider that the right of their

users to freedom of expression and information or their own right to conduct a

business (see Section 2.2) would be disproportionately affected by complying with the

removal order, they would not be able to effectively contest the removal order.

Given this degree of automatism to the implementation of removal orders and the

potential level of interference with fundamental rights that issuing of removal orders

entails, the measure should be conceived in a manner that directly integrates the

supervision by a judicial authority. Ensuring that every competent authority issuing

removal orders is of judicial nature would provide the most adequate and effective

guarantees against rights violations. If this option is not feasible in the context of the

given national legal order, speedy judicial review should take place immediately after

the removal order is issued and ideally, before the content is actually removed or,

shortly thereafter. In such cases, the proposal would need to establish a procedure for

restoring the content in situations where the hosting service provider receives a

negative decision of the independent judicial authority after the content has already

been removed or access to it disabled.

FRA Opinion 4