EN

Brussels, 6.11.2007

SEC(2007) 1424

COMMISSION STAFF WORKING DOCUMENT

Accompanying document to the

Proposal for a

COUNCIL FRAMEWORK DECISION

amending Framework Decision 2002/475/JHA on combating terrorism

IMPACT ASSESSMENT

{COM(2007) 650 final}

{SEC(2007) 1425}

TABLE OF CONTENTS

EXECUTIVE SUMMARY (...)5

1. Section 1: Procedural issues and consultation of interested parties (...)7

1.1. Background: organisation and timing, consultation and expertise (...)7

1.2. The Impact Assessment Board (...)9

1.3. State of play: Existing policy documents and legal instruments (...)10

1.3.1. Policy documents (...)10

1.3.2. Legal instruments (...)11

2. Section 2: Definition of the problem (...)12

2.1. What is the issue or the problem that may require action? (...)12

2.1.1. The increasing dissemination of propaganda as well as bomb-making and other expertise for terrorist purposes, especially through the Internet (...)12

2.1.2. Insufficient legislation to tackle the increasing dissemination of terrorist propaganda and terrorist expertise (...)16

2.1.2.1. Criminal law (...)17

2.1.2.2. Non criminal law (...)20

2.1.3. Practical difficulties of law enforcement authorities facing increasing dissemination of terrorist expertise and terrorist propaganda (...)21

2.1.3.1. Lack of law enforcement authorities' capacities and expertise (...)21

2.1.3.2. The nature of the Internet itself (...)22

2.2. Who is affected, in what ways, and to what extent? (...)22

2.3. How would the problem evolve, all things being equal? (...)23

2.4. Does the EU have the power to act? (...)23

3. Section 3: Objectives (...)24

4. Section 4: Policy options (...)26

4.1. Option 1: No policy change (...)26

4.2. Option 2: Forbidding internet services providers to give access to material aiming at public provocation to commit terrorist offences, recruitment or training for terrorism (...)28

4.3. Option 3: Enhancing law enforcement authorities' capacities and expertise to counter the use of the Internet for terrorist purposes (...)29

4.4. Option 4: Urging Member States to sign and/or ratify the Council of Europe Convention on the prevention of terrorism. (...)30

4.5. Option 5: Revising the Framework Decision on combating terrorism in order to introduce parallel offences to those foreseen under the Council of Europe Convention (...)30

5. Section 5: impacts (...)31

5.1.1 Option 1: No policy change (...)31

5.1.2. Security impact (...)32

5.1.3. Economic impact: (...)33

5.1.4. Human rights impact: (...)36

5.2. Option 2: Forbidding internet service providers to give access to material aiming at public provocation to commit terrorist offences, recruitment or training for terrorism (...)41

5.2.1. Security impact (...)41

5.2.2. Economic impact (...)42

5.2.3. Human rights impact (...)45

5.3. Option 3: Enhancing law enforcement authorities' capacities and expertise to counter the use of the Internet for terrorist purposes (...)47

5.3.1. Security impact: (...)47

5.3.2. Economic impact (...)48

5.3.3. Impact on human rights: (...)49

5.4. Option 4: Urging Member States to sign and ratify the Council of Europe Convention on the prevention of terrorism (...)49

5.5. Option 5: Revising the Framework Decision on combating terrorism in order to introduce parallel offences to those foreseen under the Council of Europe Convention (...)51

5.5.1. Security impact (...)51

5.5.2. Economic impact (...)54

5.5.3. Impact on human rights: (...)55

6. Section 6: Comparing options (...)56

6.1. Summary table: costs and benefits (...)56

6.2. Advantages and drawbacks of the policy options (...)58

6.3. Summary table: check list of benefits (...)61

6.4. Introduction of public provocation to commit terrorist offences, recruitment and training for terrorism, also via the internet, as offences: An overview of options 1, 4 and 5. (...)64

6.5. Strengths and weaknesses of each policy option and preferred option (...)65

7. Section 7: Monitoring and evaluation (...)66

7.1. Monitoring of legislative measures (option 5) (...)66

7.2. Monitoring of non-legislative measures (option 3) (...)67

ANNEXES (...)68

Annex I: Replies to the First Questionnaire Addressed to Member States (...)68

Annex II: Replies to the Second Questionnaire Addressed to Civil Society, Industry and Media (...)76

Annex III: Replies to Third Questionnaire Addressed to Europol, Cepol and Eurojust (...)86

Annex IV: Insufficiency of EU and national legislation applicable to the dissemination of terrorist propaganda and terrorist expertise (...)92

EXECUTIVE SUMMARY

Modern information and communication technologies play an important role in the development of the threat which is currently represented by terrorism: they may serve as a means of dissemination of propaganda aiming at mobilisation and recruitment as well as instructions and online manuals intended for training or planning of attacks, addressed at current and potential supporters.

The Internet, in particular, may serve as one of the principal boosters of the processes of radicalisation and recruitment: it is used to inspire and mobilise local networks and individuals in Europe and also serves as a source of information on terrorist means and methods, thus functioning as a ‘virtual training camp’. The dissemination of terrorist propaganda and terrorist expertise through the Internet has therefore empowered terrorists, making the terrorist threat grow. Moreover, the importance of such dissemination can only be expected to increase, taking into consideration the fast growing number of users that will make the Internet an even more vital element of modern society than it is today.

Law enforcement authorities are presently in a difficult position to contain the spiral of violent radicalisation and easier terrorist attacks deriving from the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet. The difficulties stem from insufficient legislation, from lack of capacity and expertise to cope with the volume and plurality of languages in which the terrorist propaganda and terrorist expertise are disseminated as well as from the nature of the Internet itself: its extra-territoriality together with the anonymity it provides seriously hinders the reaction of law enforcement authorities complicating both the removal of such contents from the Internet and the investigation and prosecution of those responsible for a website and its contents.

EU legislation does not explicitly cover public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism. Furthermore, it is doubtful that the Framework Decision on combating terrorism requires Member States to ensure that a significant part of the dissemination of messages through the Internet encouraging the commission of terrorist offences or providing for terrorist expertise, either accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment, is made punishable.

However, the Council of Europe Convention on the prevention of terrorism tackles the use of the Internet as a means for public provocation to commit terrorist offences, recruitment and training for terrorism. Furthermore, it contains conditions and safeguards ensuring the respect of human rights, in particular the right to freedom of expression. It will lead to the harmonisation of Member States' legislation in this area if all of them sign and ratify the Convention.

Adopting effective measures to counter the public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism, especially through the Internet, would contribute to the prevention of the development of a stronger and wider platform of terrorist activists and supporters. Such measures should include legal provisions to remedy the insufficient legislation referred to above as well as practical measures to enhance law enforcement authorities' capacities and expertise. These actions would help to reduce the risk of terrorist attacks and to diminish the possibilities for radicalisation and recruitment.

Any legislation in this field, dealing with issues which are on the border between the legitimate exercise of freedoms (such as freedom of expression, association or religion) and criminal behaviour would necessarily have a direct impact on fundamental rights. The establishment, implementation and application of criminalisation have to be carried out while respecting fundamental rights obligations. This also implies that all establishment, implementation and application of criminalisation is subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, excluding any form of arbitrariness or discriminatory or racist treatment [1].

The options identified to achieve this objective are:

1. No policy change (which is a debatable status quo because of the existence of the Council of Europe Convention on the prevention of terrorism).

2. Forbidding internet service providers to give access to material aiming at public provocation to commit terrorist offences, recruitment or training for terrorism.

3. Enhancing law enforcement authorities' capacities and expertise to counter the use of the Internet for terrorist purposes (through adequate training, the support of experts and efficient equipment, possibly financed by the Commission).

4. Urging Member States to sign and/or ratify the Council of Europe Convention on the prevention of terrorism (through a political statement).

5. Revising the Framework Decision on combating terrorism in order to introduce parallel offences to those foreseen under the Council of Europe Convention on the prevention of terrorism and make public provocation to commit terrorist offences, recruitment and training for terrorism, also via the Internet, punishable.

After careful examination of the impacts on security, economy and human rights of each of the options as well as weighing their advantages and drawbacks, the combination of options 5 and 3 appears to be the most effective policy to counter terrorist use of the Internet while fully respecting human rights.

The monitoring and evaluation of these measures would be ensured, concerning the revision of the Framework Decision on combating terrorism, by the evaluation of national implementation which generally applies to framework decisions, as foreseen under Article 11 of this instrument and, as regards the non-legislative measures of option 3, by Articles 13 and 15 of the Specific Programme Prevention of and Fight against crime. Article 13 details the monitoring of each of the actions financed under this programme and Article 15 sets out the rules for the evaluation of the programme itself.

1. Section 1: Procedural issues and consultation of interested parties

1.1. Background: organisation and timing, consultation and expertise

The Commission Legislative and Work Programme for 2007 includes a proposal for the revision of the Framework Decision of 13 June 2002 on combating terrorism (hereafter, "Framework Decision") in order to devise effective solutions towards fighting terrorist propaganda through various media and limiting the transmission of expertise, in particular on explosives and bomb making, for terrorist purposes.

In view of the eventual revision of the Framework Decision on combating terrorism, and taking into consideration the sensitivity of the subject because of real or perceived inroads in freedom of expression, a wide stock-taking exercise was launched in June 2006. The Commission issued three different questionnaires in 2006: a questionnaire to Member States on 26 June 2006; a questionnaire to national, European and international NGOs dealing with human rights issues, Human Rights bodies, Bar and Lawyers' associations, publishers, broadcasters and journalists' associations, internet service providers, telecommunication companies, and other relevant industry on 20 November 2006, and finally, a questionnaire to Europol, Cepol and Eurojust on 11 December 2006. In addition, conversations and meetings were held with representatives of European media and internet service providers. These included, in particular, the intervention of the Commission at the Corporate Affairs Group Meeting of the European Publishers Association on 19 September 2006 as well as a the meeting with the representatives of the European Federation of Magazine Publishers, the European Publishers Council, the European Newspaper Publishers' Association and the Association of Commercial Television in Europe on 10 October 2006.

In addition, a conference was held on 20 March 2007 in order to bring together Member States, Europol, Eurojust and Cepol, present the results of the questionnaires and discuss possible solutions to fight the use of the internet for terrorist purposes. The focus of the discussion was the eventual revision of the Framework Decision on combating terrorism in view of including explicit provisions on public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism comparable to those included in the Council of Europe Convention on the Prevention of Terrorism.

Besides the data obtained throughout the consultation process, various other information sources have been taken into account, namely the Report of the Secretary-General of the United Nations "Uniting against terrorism: recommendations for a global counter-terrorism strategy" of 27 April 2006 [2], reports of the General Intelligence and Security Service of the Netherlands as well as of its National Coordinator for counter-terrorism [3], the EU Terrorism Situation and Trend Report 2007 of Europol [4] –as well as studies and articles from research centres, such as the Canadian Centre of Intelligence and Security Studies [5], and from scholars, including Maura Conway [6], Johnny Ryan [7], Gabriel Weimann [8], Bruce Hoffman [9], Hanna Rogan [10] and Alfonso García Merlos [11]. Additionally, this impact assessment takes stock of the first and second evaluation reports of the Commission on the implementation of the Framework Decision on combating terrorism [12], the explanatory report to Council of Europe Convention on the Prevention of Terrorism [13], and publications including "Apologie du terrorism and incitement to terrorism" by the Council of Europe [14], "Droit pénal comparé spécial" [15] and "Grunderfordernisse einer Regelung des Allgemeinen Teils" [16]. It also reflects the legal expertise provided for by Erling Johannes Husabø, Professor of criminal law at the University of Bergen (Norway).

1.2. The Impact Assessment Board

On 20 July 2007, the Impact Assessment Board of the European Commission delivered an opinion regarding a preliminary version of this Impact Assessment report. In the opinion, the Board in brief stated:

(1) The IA needs to develop further the problem definition and explain gaps and differences in Member States' current legislation.

(2) The value added of a new EU initiative vis-à-vis the Convention of Council of Europe needs to be better demonstrated.

(3) The objectives of the proposal need to be clarified, particularly the relation between enabling easier tracking down of terrorists and limiting the terrorist propaganda.

(4) The impacts on fundamental rights should include positive indirect impacts on right to life, right to respect for physical and mental integrity, etc.

(5) The reasoning for discarding Option 2 could be developed further, expanding the discussion on (cost-) efficiency of this option, advantages and disadvantages of using currently available technologies.

The present version of the Impact Assessment report has been significantly redrafted, with a view to taking these recommendations fully into account. Additional information and modifications have been introduced to this end in many of its sections and an additional section has been created (Section 6.3. summary table: check list of benefits). As regards the need to develop further the gaps and differences in Member States' current legislation, the information is however limited by the number of Member States that replied to the Commission's questionnaire –eighteen- as well as by the completeness of the replies. The recommendation has in this case been followed to the possible extent.

1.3. State of play: Existing policy documents and legal instruments

1.3.1. Policy documents

At international level, there are already a number of international policy documents adopted by the United Nations, the OSCE and the G8 which deal with the use of the Internet for terrorist purposes. The following (non-exhaustive) examples can in particular be mentioned.

1. The United Nations Security Council resolution 1624 (2005) calls upon States to take measures that are necessary and appropriate, and in accordance with their obligations under international law, to prohibit by law incitement to commit a terrorist act or acts and to prevent such conduct;

2. The Report of the Secretary-General of the United Nations "Uniting against terrorism: recommendations for a global counter-terrorism strategy" of 27 April 2006, A/60/825 whose section C "Denying access to recruits and communication by countering terrorist use of the internet" interprets the abovementioned resolution as providing for a basis for the criminalisation of incitement to terrorist acts and recruitment, including through the Internet;

3. The United Nations Global Counter-Terrorism Strategy mentions in its point II (12) that the Member States of the UN resolve to "work with the United Nations, with due regard to confidentiality, respecting human rights and in compliance with other obligations under international law, to explore ways and means to:

coordinate efforts at the international and regional level to counter terrorism in all its forms and manifestations on the Internet, and;

use the Internet as a tool for countering the spread of terrorism, while recognising that States may require assistance in this regard."

6. The commitment by the G8 Summit (St. Petersburg, Russian Federation, 16 July 2006), to effectively counter attempts to misuse cyberspace for terrorist purposes, including incitement to commit terrorist acts, to communicate and plan terrorist acts, as well as recruitment and training of terrorists;

7. Decision No. 7/06 "Countering the use of the Internet for Terrorist Purposes" of the Ministerial Council of the OSCE, of 5 December 2006, to intensify action by the OSCE and its participating States, notably by enhancing international co-operation on countering the use of the Internet for terrorist purposes.

At EU level, the Communication "Terrorist recruitment - Addressing the factors contributing to violent radicalisation" [17] was an initial contribution to an EU Strategy and Action Plan on Radicalisation and Recruitment which was adopted by the JAI December 2005 Council as was foreseen by the Hague Program. This policy document identified various existing EU policies that could play an important role in addressing the problem, including broadcasting media and the Internet. The Revised Radicalisation and Recruitment Action Plan of the Council of the European Union, in its Paragraph 44 notes that "the Union should promote full implementation of UNSCR 1624 (2005) and use in this context its external relations policy to encourage third states not to allow the transmission through satellite channels or other media, of messages that contain hate speech or incite terrorist violence" [18].

Furthermore, the Communication "Towards a general policy on the fight against cyber crime" [19] formulates a general policy on the fight against cyber crime at EU level, including incitement to terrorist acts and glorification of terrorism. It also identifies the problem of the growing number of illegal content sites that are accessible in Europe [20]. In order to fight illegal content, the actions envisaged by the Communication include the promotion of dialogue as well as developing EU-level voluntary agreements and conventions between public authorities and private operators, especially Internet service providers [21].

1.3.2. Legal instruments

Within the European Union, the main legal instrument to be mentioned is the Council Framework Decision on combating terrorism [22]. This instrument approximates the definition of terrorist offences in all Member States and ensures that penalties and sanctions are provided for natural and legal persons having committed or being liable for such offences, which reflect their seriousness. In addition, this instrument set up the cases in which Member States are obliged to take jurisdiction over terrorist offences so that they can be efficiently prosecuted and includes specific measures with regard to protection of and assistance to victims of terrorist offences because of their vulnerability.

In particular, its Article 4 states that inciting, aiding or abetting terrorist offences should be made punishable by the Member States and its Article 2 requires Member States to hold criminally liable those directing a terrorist group or participating in its activities. The scope of these provisions vis-à-vis the dissemination of terrorist propaganda and terrorist expertise in so far as they amount to public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism, in particular through the Internet, will be carefully studied and discussed below.

At international level, the main legal instrument to be mentioned in this context is the Council of Europe Convention on the prevention of terrorism of 2005, which entered into force on 1 June 2007. All Member States of the European Union have signed this Convention, with the exception of the Czech Republic and Ireland whereas only Bulgaria, Denmark, Romania and Slovakia have ratified it so far [23]. This should however not be understood as reluctance since ratification procedures are underway and the final text of the Convention reflects a very fine balance and broad consensus obtained after extensive work, including consultations and negotiations. According to this Convention, parties must adopt the necessary measures to establish public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism, when committed unlawful and intentionally, as criminal offences under their domestic law.

Although these provisions do not explicitly refer to the commission of such offences via the Internet, they are in fact applicable irrespective of whether they are committed over the Internet or not, as the explanatory report to the Convention clarifies. These provisions, therefore, cover terrorist propaganda and dissemination of bomb-making and other terrorist expertise through the Internet as long as they amount to public provocation to commit a terrorist offence, recruitment or training for terrorism as defined in the Convention.

In addition, the instrument contains conditions and safeguards (i.e. Article 12) ensuring the respect of human rights, in particular the right to freedom of expression.

2. Section 2: Definition of the problem

2.1. What is the issue or the problem that may require action?

2.1.1. The increasing dissemination of propaganda as well as bomb-making and other expertise for terrorist purposes, especially through the Internet

"Since the advent of the printing press using industrial age technologies in the 19th century, terrorists and extremist movements have employed every available mass communication technology" [24]. Yet, the use of media by modern terrorism nowadays is not comparable with that preceding the widespread use of the Internet and other new media technologies. At that time, in order to reach a wide audience and gain publicity for their cause, terrorists were obliged to draw the attention of conventional media and conditioned to the presentation of the facts made by these. The arrival of new media technologies represents a turning point: terrorists are no longer reliant on intermediaries to interpret their deeds. They now have the ability to tell their own stories via their websites and television stations. The level of editorial control afforded to terrorists by their access to new media technologies has substantially empowered them [25].

However, the dramatic change stemming from the access of terrorists to new technologies goes far beyond allowing them to spread their views among large audiences, particularly when it comes to the Internet. Actually, more worrying than disinformation reaching public opinion is the propaganda aiming at mobilisation and recruitment as well as the dissemination of instructions and online manuals intended for training or planning of attacks, addressed at current and potential sympathisers.

This concern cannot but increase when the dimensions of the phenomenon are taken into account. Websites, chat-forums and blogs operated by terrorist groups and their supporters have multiplied in the last years [26]. Studies and reports from scholars, research centres and international organisations including the United Nations as well as from national intelligence services coincide to point out its importance. As an illustrative example, the Report of the Secretary-General of the United Nations "Uniting against terrorism: recommendations for a global counter-terrorism strategy" of 27 April 2006, states [27]:

"Terrorist networks rely on communication to build support and recruit members. We must deny them this access, particularly by countering their use of the Internet — a rapidly growing vehicle for terrorist recruitment and dissemination of information and propaganda. In 1998, there were fewer than 20 terrorist websites. By 2005, that number was estimated by experts to have surged into the thousands. Indeed it seems that some major recent attacks drew support from content on the Internet."

The Internet is cheap, fast, easily accessible and has a practically global reach. All these advantages, highly appreciated by law-abiding citizens that benefit from the Internet in their daily lives, are also unfortunately exploited by terrorists, who have perfectly understood the potential of the Internet as a tool to spread propaganda aiming at mobilisation and recruitment as well as to provide for instructions and manuals intended for training or planning of attacks at very low risk and cost. The Internet can be regarded as the largest platform for relatively anonymous public comments, where expression of radical opinions is unhampered by social control or risk of persecution. This explains why terrorists have taken to the Internet with such alacrity.

An example that illustrates the priority that terrorists place upon communication is the fact that in 1998 Al-Qaeda established four departments to conduct affairs in military, finance, Islamic study and media matters. For this last department, the Internet was a particularly important tool.

No form of terrorism ignores the importance of communication nor renounces to exploit the Internet [28]. However, it should be noted that Islamist terrorism [29] is particularly active in this field. Its activists and supporters produce high quality material and favour an inter-active use of the web which has proven very effective to fuel radicalisation and recruitment. Furthermore, its de-centralised structure perfectly fits into the web allowing Islamist terrorism to exploit the Internet to a further extent than forms of terrorism operating through highly structured and hierarchical groups.

A report of the General Intelligence and Security Service of the Netherlands [30] confirms that modern information and communication technologies play a crucial role in the development of the threat which is currently represented by Islamist terrorism. With a graphic example, the report compares the Internet with a turbo propelling the global violent Djihad [31] movement, stating that it is one of the principal boosters of the processes of radicalisation and recruitment. The report continues detailing the mobilising and training purposes for which the Internet is used by terrorists groups explaining that the radical and extremist messages spread via the Internet both inspire and mobilise local Djihadist networks and individuals in Europe. The Internet, the report adds, can also stimulate and accelerate the emergence of real and virtual networks, and serves as a source of information on terrorist means and methods, thus functioning as a ‘virtual training camp’.

The report notes that this is a relatively recent phenomenon and therefore the study of the influence of the Internet on the development of the Djihadist movement and the role of this medium in individual radicalisation and Djihadisation is still at an early stage. However, on the basis of a number of recent cases, the report continues, it is possible to draw some tentative conclusions on various aspects of the so-called virtualisation of violent Djihad: "Virtualisation means that the ideological and organisational development of Djihadist networks and individuals is increasingly taking place on or with the help of the Internet. This obviously involves the risk that sooner or later virtual threat will turn into the specific threat of an actual attack. The General Intelligence and Security Service of the Netherlands expects that this virtualisation trend in particular will be essential in the future threat against Europe and the Netherlands" [32].

Despite the existence of other means through which mobilisation, recruitment and training can occur, the effort into distributing information online, and cases of militant operations in which the Internet is known to have played an important role, leads to the conclusion that Internet represents an increasingly important instrument to fuel violent radicalisation and ease terrorist attacks. The Internet has therefore empowered terrorists, making the terrorist threat grow. Moreover, the importance of online terrorism can only be expected to increase, taking into consideration the fast growing number of users that will make the Internet even a more vital nerve in modern society than it is today.

However, it is important to clarify that the dissemination of terrorist propaganda aiming at mobilisation or recruitment and instruction or manuals intended for training or planning of attacks does not only take place online. The Internet has not eliminated traditional means of dissemination such as distributing printed material or exhibiting videos. Moreover, the web boosts and complements other methods of dissemination. In those countries or regions where the Internet is not so widespread, the access of one individual is enough to record audio or video files or copy documents containing terrorist propaganda or terrorist expertise that will be latter distributed or exhibited to those who do not have the means to go online. In this sense, the lack of access to the new technologies does not impede access to material originally posted online.

Europol's report TE-SAT 2007 analyses the situation of terrorism in the European Union specifying that 706 individuals were arrested in 2006 as terrorist suspects [33]. Islamist terrorism is examined in detail, including the importance of propaganda for this type of terrorism. A total of 340 persons were reported to have been arrested on Islamist terrorism related offences between October 2005 and December 2006 [34]. Concerning propaganda, in general, 2006 saw a rise in the frequency of statements and communiqués by Islamist groups, especially Al-Quaeda [35].

The concepts of terrorist propaganda, terrorist expertise and dissemination

Terrorist propaganda and terrorist expertise in this impact assessment are not legal concepts, but cover a variety of acts. From the legal point of view, in accordance with the Council of Europe Convention on the prevention of terrorism, these acts are to be criminalised only in so far as they amount to public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism.

Terrorist propaganda in this impact assessment refers to a variety of contents. From glorification of suicide bombers as “martyrs” to open encouragement to join terrorism, including direct invitations to “kill the heretic” without forgetting the justification of terrorism [36] or the dissemination of images of brutal assassinations as a way to gain publicity for the terrorists cause or prove their power, increasing fear. Thus, this term covers terrorist propaganda for diverse purposes: mobilising, recruiting or fund-raising.

However, the scope of this notion is restricted by two requirements: first of all, the information transmitted should actually create the risk that one or more terrorist offences are committed or the risk of recruitment; secondly, the content should be disseminated for the purpose of contributing to terrorist activity.

Terrorist expertise in this impact assessment includes all sorts of materials, from brief military instruction manuals to comprehensive encyclopaedias such as the infamous “Encyclopaedia for the preparation of the Djihad”, in both written as well as audio-visual form. The concept also covers content such as how to produce home-made explosives and poisons or how to use weapons, as well as strategic information including instructions on how to carry out attacks, reconnaissance operations, hostage-taking or how to establish an underground organisation, without forgetting data on targets to help the planning and co-ordination of attacks.

Similarly to terrorist propaganda, the scope of terrorist expertise is restricted by two requirements: first of all, the information transmitted should be actually useful for the commission of one or more terrorist offences; secondly, the information should be transmitted with the purpose of contributing to terrorist activity.

Pointing out the intentional element in the transmission of terrorist expertise is particularly relevant. Actually, unintentional propaganda is quite difficult to imagine. However, transmitting expertise on bomb-making or the use of weapons may have a different purpose than contributing to terrorist activity. Sometimes, the author might even be unconscious of such a risk. Even information in governmental sites may constitute a significant help for terrorists. For example, the US Nuclear Regulatory Commission Office of Nuclear Security and Incident Response recently took more than 1,000 sensitive documents off line considering that they would provide clear and significant benefit to a terrorist planning an attack [37].

The element of "terrorist intent" would exclude the dissemination of material for scientific, academic or reporting purposes (or any other purpose that is not contributing to terrorist activity). It follows that the expression of radical, polemic or controversial views in the public debate on sensitive political questions, including on terrorism issues, as well as the dissemination, even consciously, of distorted information, does not amount to the dissemination of terrorist propaganda or terrorist expertise.

It should be noted that there are often mixed cases where the transmission of terrorist propaganda and expertise comes together: messages containing instructions for a terrorist attack often include a component of encouragement [38].

This study focuses on the study of online dissemination of terrorist propaganda and terrorist expertise through messages accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment, as a recent phenomenon of important consequences and huge dimensions. However, offline distribution of terrorist propaganda and terrorist expertise is also comprised in the concept of "dissemination" used in the impact assessment, which includes any form of distribution that makes available terrorist propaganda or terrorist expertise to the public, to a group of current or potential sympathisers or to pre-selected candidates for recruitment.

Dissemination in this impact assessment consists of making terrorist propaganda and terrorist expertise available to the public, to a group of current or potential sympathisers or to pre-selected candidates for recruitment, by any means either on or offline.

2.1.2. Insufficient legislation to tackle the increasing dissemination of terrorist propaganda and terrorist expertise

The analysis of EU and national legislation included in Annex IV explains in detail why existing legislation at EU and national level is insufficient. This analysis covers the Television without frontiers Directive, the Directive on electronic commerce and the Data retention Directive although it focuses on Criminal law, in particular, on the relevant provisions of the Framework Decision on combating terrorism – Articles 2 and 4 - as well as the relevant Criminal law in Member States.

2.1.2.1. Criminal law

As regards Criminal law, the analysis provided for in Annex IV offers the following conclusions:

1. It is doubtful that Article 4 of the Framework Decision requires Member States to ensure that the dissemination of messages through the Internet encouraging the commission of terrorist offences, either accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment, is made punishable.

The doubt stems from the fact that Article 4 does not include the obligation for Member States to ensure that attempts to incite others to commit terrorist offences are made punishable. In this sense, it could be defended that the provision only obliges Member States to incriminate incitement when at least one of the recipients of the message is actually incited. This would lead to the conclusion that Article 4 does not require Member States to make the dissemination of messages encouraging the commission of terrorist offences via the Internet itself punishable.

The first evaluation report on national implementation seems to confirm this interpretation concerning public dissemination (the case of messages accessible to anyone): it concluded that all Member States would be able to meet the terms of Article 4 through their national provisions on complicity and inchoate offences whereas only three Member States had submitted provisions dealing with public dissemination of messages encouraging the commission of terrorist offences.

2. It is doubtful that Article 4 of the Framework Decision requires Member States to ensure that the dissemination of messages through the Internet providing for terrorist expertise, either accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment, is made punishable.

Once again, the doubt stems from the fact that this provision does not include the obligation for Member States to ensure that the attempt of aiding or abetting others to commit terrorist offences is made punishable and it seems that the dissemination of the messages referred to above via the Internet should be qualified as an attempt.

3. It seems that Article 2 of the Framework Decision does not require Member States to ensure that a significant part of the dissemination of messages through the Internet encouraging the commission of terrorist offences, either accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment is made punishable.

Article 2 includes the requirement of contributing to the criminal activities of a terrorist group.. In this sense, it could be defended that messages accessible to anyone, restricted to members of a chat-forum or addressed to potential recruits fall out of the scope of Article 2. Concerning messages aimed at fund-raising or recruitment for a terrorist group, they seem to meet such requirement. However, these messages would actually constitute an attempt of fund-raising and recruitment and the criminalisation of attempt under Article 4 does not cover the attempt to commit offences related to terrorist groups.

4. It seems that Article 2 of the Framework Decision does not require Member States to ensure that a significant part of the dissemination of messages through the Internet providing for terrorist expertise, either accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment is made punishable, save in exceptional cases.

Once again, since Article 2 includes the requirement of contributing to the criminal activities of a terrorist group, it could be argued that the dissemination of terrorist expertise is not covered by Article 2 insofar as the recipients are undetermined (i.e. messages accessible to anyone or disseminated in a chat forum) or potential recruits.

6. Seventeen Member States that replied to the questionnaire have got or are adopting provisions addressing direct invitations to commit a specific terrorist offence through messages accessible to anyone (i.e. website), restricted (i.e. chat forum) and addressed to pre-selected candidates for recruitment.

Seventeen out of the eighteen Member States that answered the questionnaire have got or are adopting provisions addressing direct invitations to commit a specific terrorist offence under offences of "provocation", "instigation", "public incitement" etc. Additionally, eight Member States have got or will have provisions explicitly condemning glorification or approval of terrorist offences (and often of other crimes). Two Member States deal specifically with the denigration or humiliation of the victims. Two also refer to apology of terrorism or crime apology.

7. Nine Member States that replied to the questionnaire have got or are adopting provisions that explicitly cover the transmission of terrorism expertise which are applicable to either messages accessible to anyone (i.e. website), restricted (i.e. chat forum) or addressed to pre-selected candidates for recruitment.

|

8. Generally speaking, national provisions of Member States, although not harmonised, substantially cover the dissemination of terrorist propaganda and in some cases also terrorist expertise while the Framework Decision on combating terrorism stays behind. Furthermore, the European instrument already appears to be out-dated in the international context, where the Council of Europe [39] and the United Nations [40] have set the basis for further reaching national legislation.

Therefore, the analysis included in Annex IV leads to the conclusion that EU legislation does not fully cover the dissemination of terrorist propaganda and terrorist expertise - most Member States currently provide only for non-harmonised and partial legal solutions. In particular, the Framework Decision on combating terrorism does not require Member States to ensure that the dissemination of messages containing terrorist propaganda or providing for terrorist expertise is made punishable save in exceptional cases.

Concerning national legislation, as explained above, seventeen Member States (out of eighteen that answered the questionnaire) currently provide for or are adopting legal solutions to tackle the dissemination of messages encouraging the commission of terrorist offences. Nevertheless, very different concepts are used, including "provocation", "instigation", "public incitement", "glorification", "approval" or "apology" and "denigration of the victims", which results in lack of clarity and sometimes obviously different scopes. In particular, it seems that in many cases indirect provocation is not covered. In consequence, the dissemination of messages encouraging persons to join a terrorist movement or to become a terrorist, without reference to a specific terrorist offence risks to remain unpunished. Concerning the dissemination of terrorist expertise, nine Member States (out of the eighteen that answered the questionnaire) have got or are adopting rules that can cover the dissemination of messages containing terrorist expertise. It follows that there is a security gap to be addressed and that harmonisation is required.

Lack of harmonisation and insufficient legislation in many Member States hinders prosecutions within the national territory as well as police and judicial co-operation with other Member States where the dissemination of terrorist propaganda and terrorist expertise have been made punishable. In this sense, Europol notes that the number of investigations into terrorist propaganda seems small compared to the amount of the propaganda circulating on the Internet [41]. It indicates that one of the reasons is the lack of legislation allowing for arrests or investigations [42]. Similarly Eurojust states that, in order to be able to fight adequately the use of the Internet for terrorist purposes, proper legislation would need to be enforced so that law enforcement authorities working on such cases are not hindered by a lack of legal provisions. This body notes that outlawing Internet websites supporting or displaying terrorist views would already be a good step forward [43].

This situation is expected to improve, since the signature and ratification of the Council of Europe Convention on the prevention of terrorism by a large number of Member States will address the problems of lack of harmonisation and legal loopholes identified at national level to a large extent. It will constitute a significant improvement in terms of security allowing law enforcement authorities to investigate the dissemination of terrorist propaganda and terrorist expertise throughout the European Union and hold terrorist activists and supporters behind such dissemination liable for public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism [44]. However, it does not appear as the optimal solution to the problem because of several reasons.

First of all, given the urgency of the problem, it would not be appropriate to wait for the process of signature and ratification by all Member States – as mentioned above two Member States have not even signed the Council of Europe Convention. Experience shows that ratification processes are usually lengthy and often extend over long periods of time. Secondly, framework decisions present important advantages vis-à-vis international conventions and treaties, namely the obligation of Member States to notify the implementation measures adopted, the elaboration of an evaluation report on the correct and full implementation of Member States by the Commission, which is later assessed by the Council, and the fact that the European Court of Justice is entitled to deliver preliminary rulings [45].

In addition, if the new offences introduced by the Council of Europe Convention remain outside the Framework Decision on combating terrorism, such offences remain outside the benefits achieved through all prior harmonisation in the field of the fight against terrorism. This includes rules on penalties and jurisdiction as well as the automatic application of the European Arrest Warrant and other instruments linked to the Framework Decision on combating terrorism [46]. Given the importance of the phenomenon and the commitment of the European Union to the fight against terrorism, the EU arsenal of counter-terrorism measures should clearly also be applicable to public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism.

Moreover, it would create illogical discrepancies where, for example, producing a counterfeit passport to contribute to a terrorist plot would come under all EU harmonisation on counter-terrorism but not recruiting or training through the Internet, encouraging the commission of terrorist offences and even arranging the entrance of new recruits in a training camp. Similarly, those stealing sensitive data on public infrastructure in preparation of a terrorist attack that others plan to commit are now covered by the regime of the Framework Decision. However, those distributing the very same information through the Internet, and even accompanying it with instructions on how to perpetrate the attack, would not be covered by the Framework Decision.

Finally, the nature of the problem requires international co-operation and co-operation with internet service providers. The insufficiency of EU legislation incriminating the dissemination of terrorist propaganda and terrorist expertise leaves the European Union in a weak position to request their assistance. Once again, given the commitment of the European Union to the fight against terrorism, the European Union should not loose an opportunity to strengthen its position to seek the required co-operation with third countries and private sector (see section 5.5.1 security impact of section 5).

2.1.2.2. Non criminal law

Concerning EC instruments, the analysis included in Annex IV examines the Television without frontiers Directive, the Directive on electronic commerce and the Data retention Directive.

The conclusions of this analysis with respect to non-criminal law are the following:

1. The Television without frontiers Directive does not currently apply to the Internet and after its ongoing revision will only apply to a restricted portion of the content available on the internet. In addition, it does not directly outlaw the dissemination of terrorist propaganda and terrorist expertise but prohibits incitement to hatred. It follows that this instrument provides for a rather limited solution to tackle the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet.

|

2. The Directive on electronic commerce allows law enforcement authorities to request internet service providers to remove from or disable access to a website. However, its application requires that the dissemination of terrorist propaganda or terrorist expertise is outlawed. In many Member States the dissemination of terrorist propaganda or terrorist expertise is not fully incriminated or forbidden, excluding the use of the co-operation channels foreseen under the e-commerce Directive.

|

3. The Data retention Directive allows law enforcement authorities to request to internet service providers the location and traffic data. Nevertheless, the data retention Directive only applies regarding serious crimes. It follows that the complete or partial lack of incrimination by many Member States excludes the request of data to service providers under the Data retention Directive.

Therefore, the analysis leads to the conclusion that the relevant EC legislation either will only very partially cover the dissemination of terrorist propaganda and terrorist expertise (Television without frontiers Directive) or requires that the behaviour is previously outlawed or made punishable in order to be applicable (Directive on electronic commerce and Data retention Directive respectively). As regards the two last instruments, the absence of relevant criminal law fully covering the dissemination of terrorist propaganda and terrorist expertise in many Member States referred to above plays an important role, limiting the use of such instruments.

Additionally, it should be noted that the investigation of the dissemination of terrorist propaganda and terrorist expertise and the prosecution of the terrorist activists and supporters behind it is currently impossible under all three instruments.

2.1.3. Practical difficulties of law enforcement authorities facing increasing dissemination of terrorist expertise and terrorist propaganda

Law enforcement authorities are currently in a difficult position to contain the spiral of violent radicalisation and ease of terrorist attacks deriving from the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet. The difficulty does not only derives from the insufficient legislation referred to above, but also from practical difficulties such as the lack of capacities and expertise as well as the nature of the Internet itself: its extra-territoriality together with the anonymity it provides greatly complicates the investigation and prosecution of those using the web as a means to disseminate propaganda aiming at mobilisation and recruitment for terrorism, as well as to transmit bomb-making and other terrorist expertise.

2.1.3.1. Lack of law enforcement authorities' capacities and expertise

The volume and number or languages of the messages disseminating terrorist propaganda and terrorist expertise is huge. Law enforcement authorities and other services involved in the fight against terrorism (hereafter law enforcement authorities) lack of capacity and expertise: processing and interpreting the websites in question is an enormous time-consuming and labour-intensive process, because of the quantity of the material [47] and the languages [48] in which the documents have been established.

2.1.3.2. The nature of the Internet itself

Concerning the difficulties stemming from the nature of the Internet itself, Europol notes that law enforcement agencies have difficulties in identifying individuals who spread Islamist terrorist propaganda on the Internet [49]. The virtual nature of the Internet knows no boundaries and together with its anonymity complicates the identification of those responsible of a website and its contents [50]. Besides high technical skills, assistance from internet service providers is often required to achieve the desired identification. However, it is extremely likely that the internet service providers whose assistance is needed are outside the Member State that carries out the investigation. Furthermore, in many cases they will be based outside the European Union. As regards the removal of the sites in question, the problem of extra-territoriality is equally present, since most of the websites containing terrorist propaganda and terrorist expertise are hosted by internet service providers based in third countries. In addition, the issue of the speedy re-apparition of websites that have been closed down must be considered: when a website is successfully removed from a host server, it reappears very easily under another name. It can also reappear outside the jurisdiction of the European Union, in order to avoid the eventuality of being closed down once more.

The success of both kinds of requests – obtaining data to identify the one responsible for the website and its contents or closing down the website itself - depends on the legislation in the State where the internet service provider is based, as well as on existing co-operation agreements between the requesting and the requested States. Currently, insufficient legislation in many Member States means that such co-operation is not even guaranteed within the European Union. Successful co-operation with third countries appears even more uncertain. Europol states that, considering that a wide range of terrorism related websites fall outside the jurisdiction of Member States, there is a need for a common European Union approach towards foreign States which, knowingly or not, are harbouring terrorism-related websites, in order to make them adopt or change their legislation [51]. However, such EU approach requires previous legal measures outlawing the dissemination of terrorist propaganda and terrorist expertise in all Member States.

This dimension of the problem, including technical difficulties and international co-operation issues is however not specific to the use of the Internet for terrorist purposes but shared by all content-related crimes. The Communication "Towards a general policy on the fight against cyber crime" has addressed this issue when referring to illegal content in a general sense [52].

2.2. Who is affected, in what ways, and to what extent?

Firstly, terrorists: characteristics of the Internet such as ease of access, global reach, speed, lack of regulation, dynamicity and interactivity, individual control, anonymity and reduced transaction costs, make of it a key tool for terrorists. It allows for spreading violent radicalisation and easing terrorist attacks at very low cost and risk. The Internet has therefore empowered terrorists.

Potential and current sympathisers are also affected: selected as potential recruits or financers through the Internet, they become the target of messages aiming at recruitment or fund-raising. Therefore, they are more easily accessible for recruiters that can multiply the number of targets, the frequency of contacts, and the volume of information supplied at very low cost and risk. Exposure of sympathisers to specifically targeted propaganda increases therefore the chances that more sympathisers become activists and supporters.

Citizens are generally concerned: since the use of the Internet for terrorist purposes contributes to fuel violent radicalisation and makes terrorist attacks easier, the dissemination of these contents through the Internet increases the terrorist threat and hinders security.

Internet service providers since their services are abused: internet service providers cannot monitor all information they host or give access to, because of its volume. Terrorist activists and supporters benefit from this circumstance and use the Internet to disseminate terrorist propaganda and recruitment without internet service providers noticing.

Finally, law enforcement authorities are logically affected: first of all, as explained above, they are in a difficult position to contain the spiral of violent radicalisation and easier preparation of terrorist attacks deriving from the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet [53]. Secondly, because the resulting stronger and wider platform of activists and supporters amounts to a growing terrorist threat, which directly concerns law enforcement authorities in their task of preventing crimes and protecting citizens.

2.3. How would the problem evolve, all things being equal?

As hinted at above, the fast growing number of users will make the Internet in the future even a more vital infrastructure in modern society than it is today. Therefore, the importance of the online dissemination of terrorist propaganda and terrorist expertise can only be expected to increase and, with it, the role of the Internet as a key instrument to fuel violent radicalisation and make terrorist attacks easier. Terrorist propaganda and terrorist expertise will reach an even larger audience which will easily access messages providing for encouragement, justifications and expertise to perform a terrorist attack. The number of both supporters and activists is in consequence expected to rise, creating a stronger and wider platform which will amount to a growing terrorist threat. Helped by the Internet, terrorists will become even more de-centralised, be able to communicate and operate faster and become even more difficult to trace.

2.4. Does the EU have the power to act?

Given the scope and magnitude of the terrorist threat posed by the proliferation of the dissemination of terrorist propaganda as well as terrorist expertise through the Internet, a need to tackle this threat persists and is growing. Radicalisation, recruitment and training connected to the dissemination of terrorist propaganda and terrorist expertise have a global dimension and, in consequence, cannot be dealt with only at national level. The threat is international, and so must be at least a part of the answer. It is beyond any doubt that the fight against terrorism will continue to be most important at a national level, but there is a clear need to extend the current complementary efforts at national and EU level to the new modus operandi of terrorist groups referred to above.

The EU actions discussed in this impact assessment report will not go beyond what is required and what is adding value at the EU-level. The fight against terrorism, including the dissemination of terrorist propaganda and terrorist expertise through the Internet will also in the future primarily be a responsibility of Member States, and the scale of EU intervention will remain limited. However, the benefits of EU-level action in this field should not be underestimated. Operational law enforcement work against cross-border criminal activities would be considerably facilitated.. The intrinsic international and cross-border character of dissemination of terrorist propaganda and terrorist expertise through the Internet is proof enough that actions are needed both at international and at EU-level. This study will identify the need for appropriate measures at EU level. This action shall be understood in the context of both terrorist and cyber-crime EU policies, which require coordinated efforts of Member States as well as co-operation at an international level in order to achieve their aims. It should again be underlined that EU action in the field of dissemination of terrorist propaganda and terrorist expertise especially through the Internet will only be a supplement to national and other international policies. A reinforced EU coordination should mainly be regarded as a limited but nevertheless very important contribution to the national and global actions against terrorism and cyber crime.

The proportionality of the options analysed in this impact assessment will be carefully assessed so that it becomes clear whether or not they go beyond what is necessary to achieve the objectives described under section 3. The proportionality will be especially considered concerning the respect of human rights, since this impact assessment addresses issues that are on the borderline between the legitimate exercise of freedoms, such as freedom of expression, association or religion, the respect of fundamental rights and freedoms, and criminality. Those options which do not prove fully compliant with human rights and fundamental freedoms will have to be rejected.

Proportionality is also an element to be taken into consideration regarding the costs that the options assessed might entail for the private sector, in particular for internet service providers. Any action imposing a disproportionate burden on the private sector will therefore be discarded.

This report will assess, among other policy options, the adoption of a proposal for the revision of the Framework Decision on combating terrorism. The legal basis for this action would be the same as the legal basis for the adoption of the Framework Decision on combating terrorism itself: Articles 29, 31 (1) (e) and 34 (2) (b) TUE.

3. Section 3: Objectives

General objective: Countering the increasing dissemination of terrorist propaganda and terrorist expertise in particular through the Internet.

Effective measures should be adopted in order to make the Internet a more hostile environment for terrorists and reduce its contribution to mobilisation of terrorism supporters, recruitment and training for terrorism. Since the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet, represents an increasingly important factor contributing to fuelling violent radicalisation and assisting in the preparation of terrorist attacks, adopting effective measures against such dissemination would contribute to prevent the development of a stronger and wider platform of terrorist activists and supporters. Such measures would therefore help to reduce the possibilities for radicalisation and recruitment as well as the risk of terrorist attacks.

In order to meet this goal, two operational and more specific objectives should be achieved.

1. Strengthening the legal framework to fight the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet.

In order to contain the development of a stronger and wider platform of terrorist activists at European Union level, modern terrorism and its new modus operandi must be fought by the European Union with the same determination and strength as demonstrated in the fight against traditional terrorism. Law enforcement authorities must be clearly allowed to investigate the dissemination of terrorist propaganda and terrorist expertise, also through the Internet, and prosecute the terrorist activists and supporters behind such dissemination throughout the European Union. Furthermore, law enforcement authorities must benefit from all harmonisation that has already been achieved in the fight against terrorism and use co-operation instruments such as the European Arrest Warrant for these new forms of crime.

Therefore, the definition of terrorist offences, including offences linked to terrorist activities, should be further approximated in all Member States so that the dissemination of terrorist propaganda and terrorist expertise, also through the Internet, is punishable throughout the European Union. This would also allow a common EU approach towards foreign States whose co-operation may be crucial for the success of an investigation of cases of dissemination of terrorist propaganda or terrorist expertise.

Law enforcement authorities should also be in a position to ask hosting providers based in the European Union to disable access to relevant websites, within the limits set out in the Directive on electronic commerce and according to national provisions implementing this instrument. However, this is only a desirable objective in those cases where disabling access to a relevant website does not interfere nor conflict with monitoring and investigation purposes..

Furthermore, in the long term, and from a general perspective, the messages disseminating terrorist propaganda and terrorist expertise through the Internet would be included in the global strategy of the EU to fight illegal content, including the dialogue and co-operation with third countries which, knowingly or not, are harbouring terrorism-related websites.

2. Enhancing the capacities and expertise of law enforcement authorities to counter the dissemination of terrorist propaganda and terrorist expertise, especially through the Internet.

Law enforcement authorities should be conveniently trained, sufficiently equipped and supported by experts both on languages and IT, in order to detect and analyse violent radical content on the Internet. Pro-active policing of such content on the Internet may provide for key information in order to understand terrorist trends, anticipate terrorist actions and prevent attacks. Efficient detection and analysis may also provide for crucial data contributing to successful investigations and prosecutions. In this sense, law enforcement authorities should be equally trained, equipped and supported to trace and identify the individuals behind the dissemination of terrorist propaganda and terrorist expertise. They should be able to request traffic and location data from telecommunication operators within the limits set out by the Directive on data retention and in accordance with the national provisions implementing this instrument.

The importance of the data that may be obtained through monitoring and analysis of violent radical content on the Internet, either as pro-active policing or deriving from the investigation of a specific case, makes the disablement of access to websites a secondary objective. As explained above, disabling access to a relevant website is only a desirable objective when it does not interfere or conflict with monitoring or investigating purposes.

Such interference or conflict should be considered on a case by case basis. The decision implies weighing the benefits from closing down a website in terms of prevention of radicalisation and avoiding the risk of availability of certain information (i.e. the vulnerabilities of eventual targets of terrorist attacks) and the drawbacks of both giving up an information channel and alerting the terrorist activists and supporters behind the relevant contents.

4. Section 4: Policy options

4.1. Option 1: No policy change

This option implies that no new legislative or other measures will be adopted, neither aiming at adopting a new instrument nor amending an existing one. However, in the no policy change scenario, it is necessary to take into consideration the Council of Europe Convention on the prevention of terrorism of 2005, which recently entered into force. Under this instrument, parties must adopt the necessary measures to establish public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism, when committed unlawful and intentionally, as criminal offences under their domestic law, irrespective of the actual commission of a terrorist offence. Therefore, the Council of Europe Convention on the prevention of terrorism provides for a harmonised legal basis to fight the use of the Internet as a means for public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism including through the Internet, overcoming the obstacles identified in the relevant provisions of the Framework Decision to cover these forms of behaviour. It will lead to the harmonisation of Member States' legislation provided that all of them sign and ratify the Convention. It follows that, even if no measure is taken at EU level, a co-ordinated response to the dissemination of terrorist propaganda and terrorist expertise by Member States would be possible.

In particular, the relevant provisions, Articles 5 to 8 of the Convention, read as follows:

"Article 5 – Public provocation to commit a terrorist offence

1. For the purposes of this Convention, "public provocation to commit a terrorist offence" means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.

2. Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.

Article 6 – Recruitment for terrorism

1. For the purposes of this Convention, "recruitment for terrorism" means to solicit another person to commit or participate in the commission of a terrorist offence, or to join an association or group, for the purpose of contributing to the commission of one or more terrorist offences by the association or the group.

2. Each Party shall adopt such measures as may be necessary to establish recruitment for terrorism, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.

Article 7 – Training for terrorism

1. For the purposes of this Convention, "training for terrorism" means to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose.

2. Each Party shall adopt such measures as may be necessary to establish training for terrorism, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.

Article 8 – Irrelevance of the commission of a terrorist offence

For an act to constitute an offence as set forth in Articles 5 to 7 of this Convention, it shall not be necessary that a terrorist offence be actually committed."

Although these provisions do not explicitly refer to the commission of such offences via the Internet, they are in fact applicable irrespective of whether they are committed over the internet or not, as the explanatory report to the Convention clarifies. These provisions therefore cover the issues of dissemination of terrorist propaganda aiming at mobilisation, recruitment or fund-rising as well terrorism expertise through the Internet.

Moreover, Article 9 (2) of the Convention clarifies that attempting to recruit or train must also be made punishable. Finally, recruitment is widely defined: soliciting another person to commit or participate in the commission of a terrorist offence constitutes recruitment even if the person is not asked to join a group or association.

4.2. Option 2: Forbidding internet services providers to give access to material aiming at public provocation to commit terrorist offences, recruitment or training for terrorism

This option implies the introduction of a new legislative instrument specifically addressed to internet service providers or the amendment of the existing provisions. It intends that internet service providers based in Europe apply systematically blocking techniques in order to prevent internet users from accessing material aiming at public provocation to commit terrorist offences, recruitment or training for terrorism. This material should be kept outside EU cyber-space.

Existent technical methods to implement such obligation include dynamic filtering or black lists systems based on IP, DNS or URL filtering.

Dynamic filtering: "this is a system in which software examines incoming Internet content and determines whether to permit the Internet user access the content based on how closely that content conforms to a set of censorship criteria" [54].

Black lists systems: these are systems in which Internet users are impeded access to prohibited websites contained in a black-list, previously created by individuals, through different technical solutions:

(a) IP filtering or packet dropping systems: "they are conceptually very simple. Packets destined for the IP addresses of the websites to be blocked are discarded and hence no connection can be made to the servers. The main problem with packet dropping is the collateral damage that it causes because all of the web content on the particular IP address will become inaccessible. This can be very significant" [55].

(b) DNS filtering or DNS poisoning systems: "they work by arranging that DNS lookups for the hostnames of blocked sites will fail to return the correct IP address. This solution also suffers from overblocking in that no content within the blocked domain remains available. However, the over-blocking differs from that of IP filtering in that it does not extend to blocking other domains that are hosted on the same machine. There is also some "under-blocking" in that a URL containing an IP address, rather than a hostname, would not be affected; because a browser would simply use the IP address and would not consult the DNS at all" [56].

(c) URL filtering or content filtering systems: "they will not only block entire websites but can also be used to block very specific items, such as a particular web page or even a single image. They determine that the URL being accessed is one of those to be blocked and then ensure that the corresponding content is not made available. This type of system is extremely accurate in blocking exactly what is on the list of URLs, no more, no less, and hence there should be no overblocking (provided, of course, that the list of URLs was correct in the first place). Quite clearly, web proxies are ineffective at blocking content if their usage is optional. Hence it must be arranged that all customer traffic passes through the proxy, leading to a considerable expense in providing equipment that can handle the load. Also, to prevent a single point of failure, the equipment must be replicated, which considerably increases the cost. The bottom line for most ISPs considering blocking systems is that although content filtering is the most precise method, it is also far more expensive than the alternatives" [57].

Encouraging blocking through the industry's self-regulation or through agreements with industry, without the previous adoption of legal measures outlawing the dissemination of terrorist propaganda and terrorist expertise has been ruled out. The adoption of blocking measures necessarily implies a restriction of human rights, in particular the freedom of expression and therefore, it can only be imposed by law, subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society, excluding any form of arbitrariness or discriminatory or racist treatment. This is also the approach of the Communication on cyber-crime which foresees the development of EU-level voluntary agreements and conventions between public authorities and private operators as regards illegal content, but not harmful content.

Adopting legal measures obliging internet service providers to remove or disable access to the dissemination of terrorist propaganda or terrorist expertise they host has also been ruled out. As explained under Section 2.1.3 b, the issue of the speedy re-apparition of websites that have been closed down must be considered: when a website is successfully removed from a host server, it reappears very easily under another name. It can also reappear outside the jurisdiction of the European Union, in order to avoid the eventuality of being closed down once more. Therefore, the removal or disablement of access to terrorist propaganda or terrorist expertise by internet service providers hosting such information, without the possibility to open an investigation and prosecute the one responsible behind such content, appears inefficient.

4.3. Option 3: Enhancing law enforcement authorities' capacities and expertise to counter the use of the Internet for terrorist purposes

This option does not require the adoption of a legislative instrument but the Commission's financial support, which should be foreseen in the annual work programmes implementing the Council Decision of 12 February 2007 establishing for the period 2007 to 2013, as part of General Programme on Security and Safeguarding Liberties, the Specific Programme Prevention of and Fight against Crime.

The Commission's support could include the co-financing of different projects aiming at:

· stimulating the co-operation between academic experts and law enforcement authorities to provide these with the expertise they lack;

· enhancing co-operation between Member States to develop and exchange efficient methods of monitoring the internet for radical violent content, and

· strengthening specific training required for law enforcement authorities and others involving in countering the terrorist use of the internet.

It could also include the contract of studies on:

· non-legislative measures to prevent the distribution of violent radical content on the Internet, including notice and take down procedures and co-operation between NGOs and law enforcement authorities, and

· methodologies and adapted technological tools to efficiently detect violent radical content on the Internet .

Option 3 would in this manner provide for practical measures to support law enforcement authorities in the acquisition of further capacities and expertise to counter more efficiently the use of the Internet for terrorist purposes.

Options 4 and 5: Ensuring that Member States explicitly incriminate the use of the Internet as a means of public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism

Both options would ensure that Member States explicitly incriminate the use of the Internet as a means of public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism.

4.4. Option 4: Urging Member States to sign and/or ratify the Council of Europe Convention on the prevention of terrorism.

In this case, a political statement should be made urging Member States to sign and/or ratify the Council of Europe Convention on the prevention of terrorism. The incrimination of public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism would not become EU law. Harmonisation would however be achieved through the signature and ratification of the Convention.

It must be clarified that, under Articles 24 and 38 TEU, the European Union could have acceded to the Convention if the Presidency, authorised by the Council and assisted by the Commission, had negotiated on behalf of all Member States. However, this did not occur in the case of the Council of Europe Convention on the prevention of terrorism, and therefore, the EU cannot presently sign and ratify the Convention - this can only be done by the Member States individually.

4.5. Option 5: Revising the Framework Decision on combating terrorism in order to introduce parallel offences to those foreseen under the Council of Europe Convention

This option implies the introduction of an EU legislative instrument or the amendment of an already existing one. Given the existence of the Framework Decision on combating terrorism that already contains terrorist offences, offences related to terrorist groups and terrorist-linked offences, it is preferable to amend this instrument rather than to introduce a new one. As for the content of the amendment, it seems appropriate to opt for the level of incrimination of the Council of Europe Convention of the prevention of terrorism. This reasoning also applies to the formulation of the new offences. As explained above, the Convention tackles the new modus operandi of terrorist, including the use of the Internet as a means for public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism. It therefore overcomes the obstacles to cover the dissemination of terrorist propaganda and terrorist expertise identified in the Framework Decision on combating terrorism. Additionally, the Convention was elaborated bearing in mind the relevant case-law of the European Court of Human Rights, so that human rights and especially the freedom of expression are duly taken into account. Finally, it is advantageous to both the European Union and the Council of Europe as institutions, but also particularly for their Member States, if there is a consistency in approach between the two organisations. This sends a clear political message that the two organisations work in the same direction. At a more practical level, it should be avoided that Member States would need to implement in their national legislation two different international legal instruments. This is especially important considering the fact that in many Member States of the European Union ratification procedures related to the Council of Europe Convention are currently underway.

Despite the existence of the Council of Europe Convention on the prevention of terrorism, a revision of the Framework Decision on combating terrorism so that it would also cover these forms of behaviour would not amount to a mere formal change. It would entail significant differences in terms of the application of harmonised rules on penalties and jurisdiction and ensure the application of related EU instruments.

5. Section 5: impacts

The impact of particular policy options on specific issues is measured below as a function of the magnitude of the impact. The magnitude of each impact should be viewed as the level of influence a particular policy option would have on specific issues falling within the security, economic and human rights context.

Table of symbols (distinguishes "-" for costs and "+" for benefits |

Small magnitude | - / + |

Medium magnitude | -- / ++ |

Significant magnitude | - - - / +++ |

No impact | 0 |

5.1.1 Option 1: No policy change

As a preliminary clarification, it must be taken into account that the existence of the Council of Europe Convention on the prevention of terrorism considerably mitigates or modifies the impacts of non action at EU level. Had the Convention not existed, the effects resulting from no policy change would have greatly differed from those exposed below.

5.1.2. Security impact

As explained under section 1, all other things being equal, the fast growing number of users will make the Internet in the future even more important in modern society than it is today. Therefore, the importance of online terrorism could only be expected to increase and, with it, the role of the Internet as a key instrument to fuel violent radicalisation and facilitate terrorist attacks. Terrorist propaganda and terrorist expertise would reach an even larger audience which would easily access messages providing for encouragement, justifications and expertise to perform a terrorist attack. The number of both supporters and activists within the territory of the European Union is in consequence expected to rise.

Helped by the Internet, terrorists would become even more de-centralised, faster and more difficult to trace. Law enforcement authorities would lack the appropriate legal instruments to combat the new modus operandi of terrorists, who would exploit this security gap to their advantage. Lack of legal basis or lack of harmonisation of national legislation and consequently deficient international cooperation regarding the use of the Internet for terrorist purposes would substantially hinder law enforcement authorities in their task of fighting terrorism.

This worst case scenario will not however become true because the Council of Europe Convention on the prevention of terrorism provides for a harmonised legal basis to fight the use of the Internet as a means for public provocation to commit terrorist offences, recruitment for terrorism and training for terrorism. The harmonisation of Member States' legislation would therefore be achieved if all of them sign and ratify the Convention, which is an outcome that cannot be guaranteed. Although such harmonisation will not bring about the same results as legislation at EU level [58], it would certainly achieve some positive results and contribute to counter the present successful spread of violent radicalisation through the Internet.

In particular, those disseminating terrorist propaganda and terrorist expertise would be held liable for public provocation to commit a terrorist offence, recruitment or training for terrorism throughout the EU. In addition, the incrimination of such behaviour in all Member States, would amount to an increased co-operation of national law enforcement authorities both with industry and law enforcement authorities in other Member States in the context of criminal investigations. In particular, the use of the co-operation mechanisms foreseen under the Directive on electronic commerce and the data retention Directive would be possible concerning the dissemination of terrorist propaganda and terrorist expertise in all Member States. Law enforcement authorities could request traffic and location data in the context of the investigation of public provocation to commit a terrorist offence, recruitment or training for terrorism as well as the disablement of access to terrorist propaganda or terrorist expertise according to the national rules implementing, respectively, the Directive on data retention and the Directive on electronic commerce It should be stressed that the regime set out under both instruments remains unchanged. In particular, the liability regime foreseen under the Directive on electronic commerce is fully respected.

The security impact of this instrument is mitigated by the existence or current elaboration of provisions dealing with the dissemination of terrorist propaganda in seventeen out of the eighteen Member States that answered the respective questionnaire (see Annex I). In addition, provisions dealing with terrorist expertise are applicable in nine of those Member States. Concerning the Member States' legislation applicable to terrorist propaganda, it is important to stress that the scope of existing national provisions is usually narrower than public provocation to commit a terrorist offence and recruitment for terrorism. In particular, while direct provocation may be considered punishable in all those Member States that have legal measures in place, indirect provocation, explicitly punishable under the Council of Europe Convention, is not covered in many cases. This is a very important issue since the inclusion of indirect provocation in the Convention constitutes a key step forward. It represents the results of an ad hoc committee of the Council of Europe ("CODEXTER-apologie") and is in line with existing case law of the ECHR [59]. This case law provides for some examples of cases where indirect provocation (defending the ideology or supporting the views of a terrorist) were not considered to be covered by the right to freedom of speech [60]. There is, therefore, a security gap which the Convention can address.

· Magnitude of the impact on security: +

5.1.3. Economic impact:

Indirect economic impact on public authorities and tax-payers:

There are no direct costs identified. However, the ratification of the Convention on the prevention of terrorism by Member States might involve indirect costs. The new harmonised legislation to combat the terrorist threat would amount to an increased co-operation of national law enforcement authorities both with industry and law enforcement authorities in other Member States in the context of criminal investigations. This should lead to improved results, which implies more successful investigations and more prosecutions than presently. However, further cross-border co-operation and increased contacts with industry as well as increased prosecutions involve an additional work-load.

The hypothesis of an additional work-load resulting from the signature and ratification of the Council of Europe Convention of the prevention of terrorism by Member States is in line with Europol's report TE-SAT 2007. The report states that the number of police investigations into terrorist propaganda seems small compared with the amount of material circulating on the Internet adding that this is partially explained by the lack of legal basis for arrests or investigations using the Internet in this manner [61].

If the increased activity of law enforcement authorities required the allocation of further resources, tax-payers would not necessarily assume higher taxes: the budget allocated to law enforcement and security may be increased at the expense of other State's policies.

· Magnitude of the impact on economy: -

Indirect economic impact for companies and consumers:

No direct economic impact derives from the absence of legal measures at EU level. However, the Council of Europe Convention on the prevention of terrorism may indirectly lead to an increased use of the co-operation mechanisms foreseen under the Directive on electronic commerce and the data retention Directive. Further requests of removing material or providing information by law enforcement authorities can easily result in additional work-load for internet service providers.

It must be clarified, however, that the signature and ratification of the Convention on the prevention of terrorism by all Member States would not create or impose any new co-operation channel. Both the Directive on electronic commerce and the data retention directive have already foreseen such collaboration. The inclusion of new offences under national law would simply lead to an increased use of existing mechanisms of co-operation. But even if no new co-operation channels are created, a rise in the number of investigations related to the new offences would logically imply an additional work-load for internet service providers. These would have to assume the resulting costs unless they were able to transfer them to consumers or national authorities without seeing their sales figures reduced.

In particular, internet service providers are especially concerned with the costs deriving from the co-operation mechanisms foreseen in the Data retention Directive. Data retention involves the obligation of collection, storage and retrieval of certain traffic data. While internet service providers must automatically collect and store the relevant data, retrieving only takes place in case the data are requested by law enforcement authorities. The revision of the Framework Decision on combating terrorism would therefore not imply any change to the collection and storage of data. It would only affect the retrieval of data, in all likelihood increasing the number of requests to internet service providers.

When the Data Retention Directive was under preparation, EuroISPA indicated that costs associated with data retrieval would be very high, taking into account increased levels of data retention for extended periods [62].

However, the development, maintenance and staffing of data retrieval systems is already required by the data retention Directive, and the option contemplated here would not change that. More numerous retrieval requests under the new offences of public provocation, recruitment and training would therefore simply imply further use of existing infrastructure. Expected additional costs for internet service providers will with all probability be limited to an increased work-load of staff assigned to these tasks. The work-load of attending to such request is estimated at a maximum of four hours per request. This must be related to the number of arrests of terrorist suspects in 2006 in the European Union (706) as well as the number of internet service providers. In 1998, the estimations were that there were around 3,000 internet service providers in Western Europe alone. It should be assumed that many arrests do not require requesting traffic or location data from providers and that some data can lead to the arrest of more than one individual but also that some information obtained from providers does not lead to any arrest. Under the assumption that there are currently at least 5,000 providers in the EU, the number of hours of work per year and internet service provider that could be originated with the introduction of the three new offences which already exist in some Member States, is not considerable.

As regards removing or disabling access to certain websites under the Directive on electronic commerce, the same estimation – a maximum of four hours work per request - can be made, including the notification to the website owner. Once again, the number of terrorist arrests and the estimated number of internet service providers in the EU greatly reduces the impact of this measure per individual service provider. Although the number of websites disseminating terrorist propaganda and terrorist expertise is relatively high, only a limited portion of these are said to be hosted by internet service providers based in the EU [63]. Most importantly, most investigations do not seek to close down the websites but to monitor them, since very valuable information may be obtained [64].

It should be kept in mind that, insofar as the impact on security of option 1 is mitigated by existing legislation in Member States, the economic impact is also reduced. The number of Member States already providing for some legal measures mentioned above should be taken into consideration as indicators of the minimal estimated additional costs.

· Magnitude of the impact on economy: -

5.1.4. Human rights impact:

Direct impact on freedom of expression

The new offences introduced by the Convention on the prevention of terrorism imply a direct impact on the right to freedom of speech, especially the offence of public provocation to commit terrorist offences. Nevertheless, the explanatory report to the Convention clarifies that the Convention on the prevention of terrorism contains several provisions concerning the protection of human rights and fundamental freedoms, both in respect of internal and international co-operation on the one hand and as an integral part of the new criminalisation provisions (in the form of conditions and safeguards). Articles 12, "conditions and safeguards" and 21 "discrimination clause" of the Convention are particularly important in this respect. Namely, Article 12 (1) contains an explicit obligation of the Member States to ensure that the establishment, implementation and application of the criminalisation for which it provides are carried out while respecting human rights obligation, in particular the right to freedom of expression, freedom of association and freedom of religion. It further specifies that the establishment, implementation and application of the offences shall furthermore be subject to the principle of proportionality, with respect to the legitimate aims pursued and to their necessity in a democratic society while excluding any form of arbitrariness or discriminatory or racist treatment. The protection of human rights and fundamental freedoms, continues the explanatory report, is a crucial aspect of the Convention, given that it deals with issues which are on the border between the legitimate exercise of freedoms, such as freedom of expression, association or religion, and criminal behaviour.

Concerning public provocation to commit terrorist offences, it is indirect provocation which raises more concerns [65]. However, paragraphs 86-105 of the explanatory report to the Convention clearly stress the human rights compliant approach followed by the Council of Europe in drafting the provision in question. These paragraphs recall that freedom of expression is one of the essential foundations of a democratic society and applies, according to the case-law of the European Court of Human Rights, not only to ideas and information that are favourably received or regarded as inoffensive but also to those that "offend, shock or disturb". Nevertheless, it is noted that, in contrast to certain fundamental rights which are absolute rights and therefore admit no restrictions, such as the prohibition of torture and inhuman and degrading treatment or punishment, interference with, or restrictions on freedom of expression may be allowed in highly specific circumstances. Article 10, paragraph 2 of the ECHR lays down the conditions under which restrictions on, or interference with, the exercise of freedom of expression are admissible under the ECHR [66], while Article 15 of the ECHR provides for possible derogations in time of emergency. The explanatory report gives the example of incitement to racial hatred that cannot be considered admissible on the grounds of the right to freedom of expression [67]. The same goes, it clarifies, for incitement to violent terrorist offences and explains that the Court of Human Rights has already held that certain restrictions on messages that might constitute an indirect incitement to violent terrorist offences are in keeping with the ECHR.

Furthermore, the UN Special Rapporteur on the protection of human rights and fundamental freedoms while countering terrorism highlighted the human rights compliant approach of the Convention, stating that the Council of Europe Convention on the Prevention of Terrorism, which includes a provision calling on states to criminalize public provocation to commit a terrorist offence, is "a sound response which would respect human rights". The Special Rapporteur viewed favourably the Convention’s definition of "public provocation" since it was based on a "double requirement of a subjective intent to incite (encourage) the commission of terrorist offences and an objective danger that one or more such offences would be committed" [68].

Therefore, it can be concluded that the restrictions on fr