position of the Council on the adoption of a Regulation of the European Parliament and the Council to address the dissemination of terrorist content online

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT

Pursuant to Article 294(6) of the Treaty of the Functioning of the European Union

concerning the

position of the Council on the adoption of a Regulation of the European Parliament and the Council to address the dissemination of terrorist content online

1.Background

Date of transmission of the proposal to the European Parliament and to the Council (document COM/2018/640 final – 2018/0331(COD) 12 September 2018 Date of Council agreement on a negotiation mandate 6 December 2018 Date of the position of the European Parliament, first reading 17 April 2019 Date of trilogue 1 17 October 2019 Date of trilogue 2 20 November 2019 Date of trilogue 3 12 December 2019 Date of trilogue 4 24 September 2020 Dates of trilogue 5 29 October 2020 Date of trilogue 6 (final) 10 Deceember 2020 Date of political agreement in the Committee of Permanent Representatives 16 December 2020 Date of the LIBE Committee of the European Parliament voted to endorse the compromise agreement 11 January 2021 Date of adoption of the Council first reading position 16 March 2021

2.Objective of the proposal from the Commission

Terrorist attacks on EU soil have demonstrated how 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 and instil fear in the general public.

Terrorist content shared online for such purposes is disseminated through hosting service providers that allow the upload of third party content. Terrorists and their supprters have misused not only large social media platforms, but increasingly also smaller providers offering different types of hosting services accessible in the European Union. This misuse of certain online services highlights the particular societal responsibility of hosting service providers to protect their users from exposure to terrorist content and the grave security risks this content entails for society at large.

The Commission proposal was to establish a harmonised legal framework to prevent the misuse of hosting services for the dissemination of terrorist content online, to guarantee the smooth functioning of the digital single market, whilst safeguarding public security and protecting fundamental rights.

The proposed Regulation aims at providing clarity as to the responsibility of hosting service providers in taking all appropriate, reasonable and proportionate actions necessary to ensure the safety of their services and to swiftly and effectively detect and remove terrorist content online. Such actions include the removal of content within one hour from receivig a removal order and specific measures to be taken by hosting service providers in a proactive manner to protect their services.

At the same time, the proposed Regulation contains a number of safeguards designed to ensure full respect for fundamental rights, such as freedom of expression and information, in a democratic society. These safeguards include obligations of transparency as well as complaint mechanisms to ensure that content providers can challenge the removal of or disabling of access to their content, in addition to judicial redress in line with Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the EU.

The obligations on Member States contained in the proposed Regulation will contribute to these objectives, by empowering competent authorities, increasing predictibility and transparency, guaranteeing adequate safeguards and ensuring that non-compliance by hosting service providers can be sanctioned through effective, proporitonate and dissuasive penalties.

3.Comments on the position of the Council

The Council’s position reflects the political agreement reached between the European Parliament, the Council, and the Commission on 10 December 2020. The most important differences between the Commission proposal and the politically agreed text are the following:

–Scope: Clarification that material disseminated for educational, journalistic, artistic or research purposes or for the purposes of preventing or countering terrorism is not to be considered terrorist content, and that an assessment is to determine the true purpose of dissemination.

–Clarification that the Regulation is without prejudice to the e-Commerce Directive and the Audiovisual Media Services Directive, as well as that for audio-visual media services the latter directive prevails in cases of conflict. A recital clarifies that this leaves the obligations for video-sharing platform providers under the Regulation unaffected.

–Specification that the Regulation applies solely to hosting service providers that disseminate information to the public, i.e. to a potentially unlimited number of persons.

–Definitions: The definition of ‘terrorist content’ excludes material that “promotes” the activities of terrorist groups and is aligned more closely with the relevant offences in the Directive on combating terrorism.