Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism - Impact Assessment {COM(2007) 650 final} {SEC(2007) 1425}
Date: 2007-11-06
Institutions: European Commission
Subjects: approximation of laws, fight against crime, impact study, public safety, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

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} 

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TABLE OF CONTENTS 

EXECUTIVE SUMMARY........................................................................................................ 5 

1. 

1.1. 

1.2. 

1.3. 

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

Background: organisation and timing, consultation and expertise .............................. 7 

The Impact Assessment Board..................................................................................... 9 

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. 

2.4. 

3. 

4. 

4.1. 

4.2. 

4.3. 

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

Does the EU have the power to act? .......................................................................... 23 

Section 3: Objectives.................................................................................................. 24 

Section 4: Policy options............................................................................................ 26 

Option 1: No policy change ....................................................................................... 26 

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 

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

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4.4. 

4.5. 

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

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. 

5.5. 

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

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. 

6.1. 

6.2. 

6.3. 

Section 6: Comparing options.................................................................................... 56 

Summary table: costs and benefits............................................................................. 56 

Advantages and drawbacks of the policy options ...................................................... 58 

Summary table: check list of benefits ........................................................................ 61 

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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. 

7.1. 

7.2. 

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

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

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 

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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.  

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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 
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 treatment1.  

is  subject 

to 

The options identified to achieve this objective are: 

1. 

2. 

3. 

4. 

5. 

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

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

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). 

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

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 

See the Explanatory Report to the Council of Europe Convention on the Prevention of Terrorism, points 
143-151. 

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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  20062,  reports  of  the  General  Intelligence  and  Security  Service  of  the 
Netherlands as well  as  of  its  National Coordinator  for counter-terrorism3,  the  EU  Terrorism 

2 

3 

Report of the Secretary-General of the United Nations "Uniting against terrorism: recommendations for 
a  global  counter-terrorism  strategy"  of  27  April  2006,  Sixtieth  session  Agenda  items  46  and  120, 
A/60/825 section C "Denying access to recruits and communication by countering terrorist use of the 
internet", p. 12, http://www.un.org/unitingagainstterrorism/sg-terrorism-2may06.pdf. 
Annual  Report  2005  of 
the  Netherlands, 
http://www.aivd.nl/contents/pages/81211/aivd_annual_2005.pdf  and  the  2006  report  of  the  same  body 
threat", 
"Violent  Djihad 
www.fas.org/irp/world/netherlands/violent.pdf.  The  2006  report  "Djihadis  and  the  Internet"  of  the 
National Coordinator for counter-terrorism, http://english.nctb.nl/publications/reports/nctb/. 

Intelligence  and  Security  of 

the  Netherlands,  current 

the  General 

terrorist 

Islamist 

trends 

the 

in 

in 

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Situation  and  Trend  Report  2007  of  Europol4  –as  well  as  studies  and  articles  from  research 
centres, such as the Canadian Centre of Intelligence and Security Studies5, and from scholars, 
including  Maura  Conway6,  Johnny  Ryan7,  Gabriel  Weimann8,  Bruce  Hoffman9,  Hanna 
Rogan10 and Alfonso García Merlos11. 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 terrorism12, the explanatory  report to Council of Europe 
Convention  on  the  Prevention  of  Terrorism13,  and  publications  including  "Apologie  du 
terrorism  and  incitement  to  terrorism"  by  the  Council  of  Europe14,  "Droit  pénal  comparé 
spécial"15 and "Grunderfordernisse einer Regelung des Allgemeinen Teils"16. It  also reflects 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

the 

fins 

terrorisme 

terrorism  uses 

-  How  modern 

terroristes"  http://www.csis-

-  L'usage  d'Internet  à  des 

EU Terrorism Situation and Trend Report of Europol 2007, 
http://www.europol.europa.eu/index.asp?page=news&news=pr070410.htm. 
"Tendances  en 
scrs.gc.ca/fr/itac/itacdocs/2006-2.pdf. 
Several publications of this author have been used for the elaboration of this impact assessment. Among 
them "Terrorism and the Internet: new media-new threat?", Parliamentary Affairs Vol. 59 No. 2, 2006, 
Advance  Access  Publication  10  February  2006,  http://pa.oxfordjournals.org/cgi/reprint/59/2/283  and 
“Terrorist use of the Internet and fighting back”, 
www.oii.ox.ac.uk/research/cybersafety/extensions/pdfs/papers/maura_conway.pdf.  In  addition,  Ms. 
Conway  intervened  in  the  conference  organised  on  20  March  2007  in  the  context  of  the  impact 
assessment of the proposal, offering highly relevant expertise. 
His study, "Countering Militant Islamist radicalisation on the Internet: a user driven strategy to recover 
the  web",  Institute  of  European  Affairs  2007,  has  been  especially  useful  concerning  the  analysis  of 
technical solutions to the spread of violent radicalisation through the Internet.  
One  of  the  most  influential  authors  in  the  area  of  the  use  of  the  Internet  for  terrorist  purposes,  his 
studies "Terror on the Internet: the new arena, the new challenges", Washington, D.C.: U.S. Institute of 
Peace  Press  2006,  and  "www.terror.net 
Internet", 
http://www.usip.org/pubs/specialreports/sr116.pdf,  have  been  taken  into  account  in  the  elaboration  of 
this impact assessment. 
His study, “The use of the Internet by Islamic extremists”, 
http://www.rand.org/pubs/testimonies/2006/RAND_CT262-1.pdf,  analyses  very  eloquent  cases  of  the 
use of the Internet for terrorist purposes.  
Her study, “Djihadism online – A study of how Al-Quida and radical Islamist groups use the Internet 
for  terrorist  purposes”,  http://rapporter.ffi.no/rapporter/2006/00915.pdf,  constitutes  an  exceptional  in-
sight on the online Djihad. 
"Internet como instrumento para la Djihad", Araucaria Revista Iberoamericana de Filosofía, Política y 
Humanidades. Año 8, Nº 16 Segundo semestre de 2006. ISSN 1575-6823 
http://alojamientos.us.es/araucaria/nro16/ideas16_5.htm, has also been relevant in the elaboration of this 
impact assessment. 
Concerning  the  first  evaluation,  the  relevant  documents  are  Report  from  the  Commission  based  on 
Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism - COM(2004) 
409, 8.6.2004 and Commission staff working paper annex to the Report from the Commission based on 
Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism - SEC(2004) 
688, 8.6.2004. The relevant documents concerning the second evaluation are still to be published. 
The explanatory report, http://conventions.coe.int/Treaty/EN/Reports/Html/196.htm, does not constitute 
an  instrument  providing  an  authoritative  interpretation  of  the  Convention,  although  it  may  serve  to 
facilitate the application of the provisions contained therein. 
"Apologie  du  terrorisme  and  incitement  to  terrorism",  Council  of  Europe  publishing,  F-67075 
Strasbourg Cedex, collects and analyses information received from the  Member States in view of the 
elaboration of the Council of Europe Convention on the Prevention of Terrorism. In particular, it deals 
with  a  relatively  new  phenomenon:  the  public  expression  of  praise,  justification  and  other  forms  of 
support  for  terrorism  and  terrorists,  which  it  refers  to  as  "apologie  du  terrorisme"  and  "incitement  to 
terrorism". 
"Droit pénal comparé spécial, Dalloz, 2002, by Jean Pradel. 

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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) 

(2) 

(3) 

(4) 

(5) 

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

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

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

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

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. 

16 

"Grunderfordernisse  einer  Regelung  des  Allgemeinen  Teils",  in  "Wirtschaftsstrafrecht  in  der 
Europäischen  Union",  (Rechtsdogmatik-  Rechtsvergleich-Rechtspolitik),  by  Klaus  Tiedemann  (ed.) 
Carl Heymanns Verlag KG. München, 2001. 

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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. 

2. 

3. 

6. 

7. 

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;  

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; 

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." 

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; 

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 

17 

Communication from the Commission to the European Parliament and the Council entitled "Terrorist 
recruitment  -  Addressing  the  factors  contributing  to  violent  radicalisation"  of  21  September  2005  - 
COM(2005) 313. 

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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 Europe20. 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 providers21.  

1.3.2.  Legal instruments 

Within  the  European  Union,  the  main  legal  instrument  to  be  mentioned  is  the  Council 
Framework  Decision  on  combating  terrorism22.  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 far23. This should however not be understood as reluctance since 
ratification procedures are underway and the final text of the Convention reflects a very fine 

18 

19 

20 
21 
22 
23 

See  Revised  Radicalisation  and  Recruitment  Action  Plan  Doc.  16530/1/06  REV  1  ENFOPOL  218 
COTER 35. 
Communication from the Commission to the European Parliament, the Council and the Committee of 
the Regions "Towards a general policy on the fight against cyber crime" of 22 May 2007 - COM(2007) 
267. 
Communication referred to above in footnote 19, p. 3. 
Communication referred to above in footnote 19, p. 10. 
Other relevant EU legal instruments are studied in Section 2.5.3. 
See 
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=196&CM=8&DF=5/16/2007&CL=EN
G to check exact situation regarding signatures and ratifications. 

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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 them25. 

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 

24 

25 

See  Terrorism  and  the  Making  of  the  ‘New  Middle  East’:  New  Media  Strategies  of  Hizbollah  and  al 
Qaeda", by Maura Conway, p 3. 
See  Terrorism  and  the  Making  of  the  ‘New  Middle  East’:  New  Media  Strategies  of  Hizbollah  and  al 
Qaeda", by Maura Conway, pp. 3-7. 

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have  multiplied  in  the  last  years26.  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, states27: 

"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 
Internet28.  However,  it  should  be  noted  that  Islamist  terrorism29  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. 

26 

27 

28 

29 

Reports  and  studies  coincide  in  the  quick  multiplication  of  these  websites,  estimating  that  nowadays 
there are over 5 000 of them. They also highlight their increasing sophistication, including the use of 
several languages as well as audiovisual material of high quality. An important aspect in the evolution 
of  the  terrorist  use  of  the Internet  is  the  increasing  importance of  the  interaction  through  chat-forums 
and blogs. 
See  the  Report  of  the  Secretary-General  of  the  United  Nations  "Uniting  against  terrorism: 
recommendations  for  a  global  counter-terrorism  strategy"  of  27  April  2006,  Sixtieth  session  Agenda 
items  46  and  120,  A/60/825  section  C  "Denying  access  to  recruits  and  communication  by  countering 
terrorist use of the internet", p 12, http://www.un.org/unitingagainstterrorism/sg-terrorism-2may06.pdf. 
Furthermore, nowadays almost all active terrorist organisations maintain websites, and many maintain 
more than one website.  
Islamist terrorism is defined under Europol's report TE-SAT 2007 referred to above, in footnote 3, title 
3 "TE-SAT 2007 Methodology", pp. 9-12, as a type of terrorism motivated either in whole or in part by 
an  extreme  interpretation  of  Islam  and  where  the  use  of  violence  is  regarded  by  its  practitioners  as  a 
divine duty or sacramental act.  

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A report of the General Intelligence and Security Service of the Netherlands30 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  Djihad31  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 

30 

31 

32 

Report  of  the  General  Security  and  Intelligence  Service  of  the  Netherlands,  "Current  trends  in  the 
Islamist terrorist threat", 2006, www.aivd.nl/contents/pages/65582/jihad2006en.pdf. 
This study uses the concepts of "Djihad", "Djihadism" or "Djihadist" when it quotes papers, reports or 
studies previously elaborated. Otherwise, the term employed is "Islamist terrorism", in the sense of the 
definition of Europol's report TE-SAT 2007 referred to above, in footnote 30. 
See the report mentioned above, footnote 23, pp. 43-44, 
www.aivd.nl/contents/pages/65582/Djihad2006en.pdf. 

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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 suspects33. 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 200634. Concerning propaganda, in general, 2006 saw a 
rise  in  the  frequency  of  statements  and  communiqués  by  Islamist  groups,  especially  Al-
Quaeda35.  

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 
terrorism36 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.  

33 
34 
35 
36 

Europol's report TE-SAT 2007, referred to above in footnote 3, p. 14. 
See Europol's report TE-SAT 2007, referred to above in footnote 3, p. 19. 
See Europol's report TE-SAT 2007, referred to above in footnote 3, p. 26. 
See i.e. “Djihadism online – A study of how Al-Qaeda and radical Islamist groups use the Internet for 
terrorist  purposes”,  mentioned  above,  footnote  9,  p.  15  and  “The  use  of  the  Internet  by  Islamic 
extremists”, mentioned above, footnote 8, pp. 6-7. 

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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 attack37. 

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 encouragement38.  

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. 

37 

38 

the  Internet  and  fighting  back”,  by  Maura  Conway,  pp.  14-15, 

See  “Terrorist  use  of 
www.oii.ox.ac.uk/research/cybersafety/extensions/pdfs/papers/maura_conway.pdf. 
See  i.e.  the  example  of  the  website  Ansar  al-Muslimin  cited  by  Hanna  Rogan  as  a  site  that 
“recommended attacks in lunch areas, overhead walkways and traffic snarls, where westerns would be 
trapped in their vehicles” in “Jihadism online – A study of how Al-Qaeda and radical Islamist groups 
use the Internet for terrorist purposes”, mentioned above, p. 30. 

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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. 

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17 

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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  Europe39  and  the  United  Nations40  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 

39 
40 

EN 

See the Council of Europe Convention on the Prevention of Terrorism, mentioned above. 
The  Report  of 
terrorism: 
recommendations for a global counter-terrorism strategy", interprets Security Council Resolution 1624 
(2005)  as  providing  for  a  basis  for  the  criminalization  of  incitement  to  terrorist  acts  and  recruitment, 
including through the Internet. 

the  United  Nations  "Uniting  against 

the  Secretary-General  of 

18 

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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 Internet41. It indicates that one of the reasons is the lack of legislation allowing for arrests 
or investigations42. 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 forward43.  

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 terrorism44. 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. 
international 
Secondly,  framework  decisions  present 
the 
conventions  and 

the  obligation  of  Member  States 

important  advantages  vis-à-vis 

treaties,  namely 

to  notify 

41 
42 
43 
44 

See Europol's report TE-SAT 2007, referred to above in footnote 3, p. 21. 
See Europol's report TE-SAT 2007, referred to above in footnote 3, p. 21. 
See Annex III. 
See Section 5.1.1, security impact of option 1. 

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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 
rulings45.  

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 terrorism46. 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.  

45 
46 

See section 5.5.1 security impact of option 5. 
See section 5.5.1 security impact of option 5. 

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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 

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labour-intensive  process,  because  of  the  quantity  of  the  material47  and  the  languages48  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 Internet49. 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  contents50.  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 legislation51. 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 sense52. 

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 

47 

48 
49 
50 
51 
52 

As explained in footnote 24, reports and studies coincide in the quick multiplication of these websites, 
estimating that nowadays there are over 5 000 of them. 
These include many non European languages.  
See Europol's report TE-SAT 2007, referred to above in footnote 3, p. 21. 
See Annexes II and III.  
See Annex III. 
Communication referred to above in footnote 19, pp. 3 and 10.  

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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 Internet53. 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 

53 

For more detailed information on the difficulties of law enforcement authorities to cope the terrorist use 
of the Internet, see Annex III. 

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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.  

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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 

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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 

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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. 

2. 

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. 

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. 

2. 

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. 

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. 

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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) 

(b) 

(c) 

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. 

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. 

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 

54 

55 

56 

See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 91. 
See "Failures in a Hybrid Content Blocking System", by Richard Clayton, 
http://www.cl.cam.ac.uk/~rnc1/cleanfeed.pdf 
See "Failures in a Hybrid Content Blocking System", by Richard Clayton, mentioned above, footnote 
70. 

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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; 

57 

See "Failures in a Hybrid Content Blocking System", by Richard Clayton, mentioned above, footnote 
70. 

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•  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 

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30 

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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 

5.1.1  Option 1: No policy change 

- / + 

-- / ++ 

- - - / +++ 

0 

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.  

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31 

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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 level58, 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 

58 

See  the  added value  of  the  revision  of  the  Framework Decision  in  relation  to  the  existing  Council  of 
Europe Convention on the prevention of terrorism. above, in section 4, option 5. 

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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  ECHR59.  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 speech60. 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 manner61.  

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: 

59 

60 
61 

See explanatory report to the Council of Europe Convention on the prevention of terrorism, mentioned 
above, footnote 13. 
See section 5.1.3, impact on human rights of option 1. 
See the EU Terrorism Situation and Trend Report 2007 of Europol, p. 21. 

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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 periods62.  

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. 

62 

Answer  of  EuroIspa  to  DG  INFSO  –  DG  JAI  Consultation  Document  on  Traffic  Data  Retention,  15 
September 2004, http://www.euroispa.org/23.htm.  

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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 EU63. Most importantly, most 
investigations do not seek to close down the websites but to monitor them, since very valuable 
information may be obtained64. 

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: - 

63 

64 

See the newsletter of the Department of Justice of the US attorney's office Northern District of Indiana, 
of  28.7.2004,  http://www.iwar.org.uk/news-archive/anti-terrorism-advisory-council/atac-vol-07-04.pdf, 
which states that the US hosts 76 percent of Islamist terrorist websites. 
The  coordinated  monitoring  of  websites  run  by  terrorist  activists  and  supporters  is  the  aim  of  the 
German initiative Check the Web, that was launched in 2006 and has achieved the establishment of a 
portal in Europol serving as a data base for this kind of sites and avoiding double working – concerning 
all detection, translation and monitoring. 

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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  concerns65.  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  ECHR66,  while  Article  15  of  the  ECHR 
provides  for  possible  derogations  in  time  of  emergency.  The  explanatory  report  gives  the 

65 

66 

See,  in  particular,  paragraph  97  of  the  Explanatory  report  to  the  Council  of  Europe  Convention  on 
prevention  of  terrorism:  "Direct  provocation  does  not  raise  any  particular  problems  in  so  far  as  it  is 
already a criminal offence, in one form or another, in most legal systems. The aim of making indirect 
provocation a criminal offence is to remedy the existing lacunae in international law or action by adding 
provisions in this area". 
Article  10(2)  of  the  ECHR states:  "The  exercise  of  these  freedoms,  since  it  carries  with  it  duties  and 
responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed 
by law and are necessary in a democratic society, in the interests of national security, territorial integrity 
or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the 
protection of the reputation or the rights of others, for preventing the disclosure of information received 
in confidence, or for maintaining the authority and impartiality of the judiciary". 

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example of incitement to racial hatred that cannot be considered admissible on the grounds of 
the  right  to  freedom  of  expression67.  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  freedom  of  speech  and  access  to 
information  included  in  the  Council  of  Europe  Convention  are  in  fact  compliant  with 
international  human  rights  norms.  The  restrictions  imposed  by  the  new  offence  of  public 
provocation to commit terrorist offences are covered by Article 10(2) of the ECHR. 

The European Court of Human Rights provides for very interesting examples of cases where 
it was found that interferences with freedom of expression in connection with the fight against 
terrorism  complied  with  Article  10  of  the  ECHR69.  Furthermore,  as  explained  above,  such 
case-law was taken into consideration for the introduction of the new offences, especially the 
public provocation to commit a terrorist offence.  

In  the  case  Brind  and  others  v.  UK,  for  example,  the  British  Government  ordered  the 
applicants,  a  television  producer  and  five  other  broadcast  journalists,  to  refrain  at  all  times 
from  sending  any  broadcast  matter  which  consisted  of  or  included  statements  expressing  or 
supporting the views of several terrorist groups. The European Commission of Human Rights 
found,  in  the  circumstances  of  the  case  and  bearing  in  mind  the  margin  of  appreciation 
permitted to States and the importance of measures to combat terrorism, that it could not be 
said that this interference with the applicants' freedom of expression was disproportionate to 
the  aim  sought  to  be  pursued.  Consequently  the  application  was  manifestly  ill-founded  and 
therefore inadmissible.  

In  the  case  Hogefeld  v.  Germany,  the  applicant  was  a  former  member  of  the  Red  Army 
Fraction  (RAF),  a  left-wing  extremist  terrorist  movement  that  had  been  responsible  for 
numerous attacks on high-ranking personalities in Germany since the early seventies. In 1993, 
the applicant was arrested and detained on remand. Subsequently, German courts denied the 
request  of  a  radio  journalist  to  allow  an  interview  with  the  applicant  because  such  an 
interview  would  conflict  with  the  purpose  of  the  detention  on  remand,  since  it  was  to  be 

67 

68 

69 

See Article 9, paragraph 2, of the Convention on the Elimination of All Forms of Racial Discrimination 
of 21 December 1965. 
See  paragraph  57  of  the  Report  of  the  Counter-Terrorism  Committee  to  the  Security  Council  on  the 
implementation of Resolution 1624 (2005) (document S/2006/737 of 15 September 2006). 
See  Collection  of  relevant  case-law  of  the  European  Court  of  Human  Rights  related  to  "apologie  du 
terrorism" and "incitement to terrorism", Council of Europe, CODEXTER (2004) 19. 

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expected, in respect of the declaration made by the applicant during the trial, that the applicant 
would explain and advocate ideological positions of the RAF, which would amount to a new 
act  of  participation  in  a  terrorist  organisation.  The  European  Court  of  Human  Rigths  noted 
that in assessing this limitation of the freedom of expression the applicant's personal history 
had to be considered. As the applicant was most probably one of the main representatives of 
an  organisation  which  had  waged  a  murderous  war  against  the  public  order  of  the  Federal 
Republic of Germany for more than twenty years, the words of the applicant could possibly 
be understood by supporters as an appeal to continue the activities of the RAF, even if they 
did  not  directly  incite  violence.  In  consequence,  it  was  concluded  that  there  had  been  no 
breach of Article 10 of the ECHR. 

These  two  cases  clearly  show  restrictions  of  freedom  of  expression  stemming  from  the 
incrimination of public provocation to commit a terrorist offence, and how they nevertheless 
comply with Article 10 of the ECHR. In two other cases the European Court of Human Rights 
found,  on  the  contrary,  that  Article  10  of  the  ECHR  had  not  been  respected70.  These 
judgements help to understand which restrictions of human rights would not be acceptable in 
relation with the offence of public provocation to commit a terrorist offence. 

In Sener v. Turkey, charges were brought under the Prevention of Terrorism Act against an 
author  of  an  article  containing  separatist  propaganda.  It  was  concluded  that  the  subsequent 
conviction  constituted  a  violation  of  Article  10  of  the  ECHR  because  the  article  taken  as  a 
whole  did  not  glorify  violence.  Nor  did  it  incite  people  to  hatred,  revenge,  recrimination  or 
armed resistance.  

Another relevant case is Castells v. Spain. Mr. Castells, a senator elected on the list of Herri 
Batasuna,  a  political  movement  seeking  the  independence  of  the  Basque  Country71,  was 
convicted  for  having  written  an  article  published  in  a  weekly  magazine  which  contained 
insults directed against the Spanish nation and its institutions. In the trial, he was denied the 
opportunity to prove the truth of his allegations and his good faith, because it was held that, 
lacking precision, it was impossible to demonstrate their truth. The European Court of Human 
Rights attached decisive importance to the fact that Mr. Castells was a political representative 
of  the  opposition  party,  criticising  the  Government,  and  to  the  alleged  inadmissibility  of 
evidence on behalf of the applicant, and ruled that in sum there had been a violation of Article 
10 of the ECHR.  

•  Magnitude of the impact on freedom of expression : - 

It should be clarified that the Convention does not imply an impact on the right to privacy and 
data  protection.  Existing  rules  on  the  right  to  privacy  and  data  protection  at  both  EU  and 
national  level  remain  unchanged.  It  is  true  that  law  enforcement  authorities  may  request 
traffic and location data from internet service providers in order to trace terrorist activists and 
supporters behind the dissemination of terrorist propaganda and terrorist expertise. However, 
these  requests  will  have  to  be  submitted  and  dealt  with  under  the  regime  established  in  the 
existing  Directive  on  data  retention  and  in  accordance  with the  national  rules  implementing 

70 

71 

See  Collection  of  relevant  case-law  of  the  European  Court  of  Human  Rights  related  to  "apologie  du 
terrorism" and "incitement to terrorism", mentioned above, footnote 87. 
It  should  be  noted  that  the  decision  of  the  ECHR  dates  from  24  April  1992.  Herri  Batasuna  was 
declared illegal on 27 March 2003 by the Spanish Supreme Court for its support to the terrorist group 
ETA. 

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38 

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this instrument. Therefore, the signature and ratification of the Convention does not entail any 
modification  of  such  regime  nor,  therefore,  an  impact  on  the  right  to  privacy  and  data 
protection.  

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39 

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Indirect impact on right to life and to integrity 

Moreover, the explanatory report of the Convention also states that the human rights that must 
be  respected  are  not  only  the  rights  of  those  accused  or  convicted  of  terrorist  offences,  but 
also  the  rights  of  the  victims,  or  potential  victims,  of  those  offences.  The  incrimination  of 
public  provocation  to  commit  terrorist  offences,  recruitment  for  terrorism  and  training  for 
terrorism has as final aim the protection of human rights of potential victims, in particular the 
right to life and the right to physical and mental integrity. In fact, such protection concerns all 
citizens, since experience shows that anyone is a potential victim. From this point of view, the 
Convention has a positive, although indirect impact on human rights that should also be taken 
into  consideration.  The  magnitude  of  such  impact  logically  corresponds  to  the  level  of 
increased security achieved by the Convention. 

•  Magnitude of the impact on right to life and to integrity: + 

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40 

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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  

5.2.1. 

Security impact  

Option 2 aims at keeping messages provoking people to commit terrorist offences, recruiting 
for terrorism and training for terrorism outside EU cyberspace. It should be clarified however 
that impeding completely that a certain kind of content is accessible to the public through the 
Internet is technically unfeasible. Existing technical methods of filtering (dynamic filtering or 
black  lists  systems  based  on  IP,  DNS  or  URL  filtering)  do  not  constitute  a  perfectly  solid 
barrier.  

First of all, existing methods of filtering can be circumvented72. Moreover, such systems have 
been designed specifically for web access. They do not function appropriately for most other 
Internet  services  and  cannot  be  applied  to  “peer-to-peer”  technologies.  Information-sharing 
using  encryption  tools,  for  example,  cannot  be  blocked  or  usefully  intercepted  by  internet 
service providers73.  

In  addition  to  these  weaknesses,  methods  based  on  a  black  list  suffer  from  the  inevitable 
incompleteness of the list. Given the volume of the material circulating through the Internet, 
as  well  as  the  speedy  edition  of  new  material  and  re-edition  of  material  in  new  websites,  a 
black  list  is  bound  to  be  seriously  incomplete  and  out-dated.  Therefore,  the  efficiency  of 
filtering is limited by the incompleteness of the black-list in the first place.  

But dynamic blocking also presents initial imperfections. "It is based on an automated form of 
censorship,  bypassing  a  black  list  created  by  humans  and  using  instead  a  set  of  criteria  of 
characteristics of the kind of material that should be censored"74. Pre-fixed criteria will not be 
able  to  cover  all  cases  of  contents  that  should  be  blocked.  There  will  necessarily  be  some 
materials  that  do  not  meet  the  set  of  criteria  and  still  aim  at  provoking  to  commit  terrorist 
offences, recruitment for terrorism or training for terrorism. 

In  consequence,  if  filtering  methods  were  to  be  applied,  terrorist  propaganda  and  terrorist 
expertise  would  still  be  accessible  from  the  European  Union  for  those  seeking  for  the 
prohibited  contents  and  having  some  Internet  literacy.  The  dissemination  of  such  content 
would  only  be  hindered  but  not  eliminated.  It  is  questionable  whether  such  additional 
difficulties would be a true deterrent for those determined to access violent radical contents or 

72 

73 

74 

Authors do not agree on the ease of the circumvention and while some argue that filtering methods are 
easily  circumvented,  others  state  that  most  circumvention  techniques  are  technically  complex  or 
burdensome to the user or need the cooperation of a third party. See "Government mandated blocking of 
foreign  Web  content",  by  Maximillian  Dornseif,  http://md.hudora.de/publications/200306-gi-
blocking/200306-gi-blocking.pdf.  However,  all  seem  to  agree  on  the  feasibility  of  circumventing 
filtering methods. In this sense, Klaus Langefeld, technical expert of EuroIspa, states that "blocking or 
removing anything but the source is an illusion and will not be effective". See "Investigating Internet 
traffic", p. 16, http://www.euroispa.org/23.htm. 
Response  of  EuroISPA,  the  European  Association  of  internet  service  providers  to  the  second 
questionnaire  issued  by  the  Commission  in  view  of  the  elaboration  of  the  impact  assessment  on  the 
revision of the Framework Decision on combating terrorism. 
See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 91. 

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41 

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would  only  prevent  the  access  of  those  that  would  come  across  the  material  accidentally  or 
consult  it  out  of  curiosity.  Furthermore,  it  should  be  considered  that  the  access  of  one 
individual  is  enough  to  record  audio  or  video  files  or  copy  documents  containing  terrorist 
propaganda or terrorist expertise that may be later easily distributed through mailing lists or 
other electronic means.  

In conclusion, the role of the Internet as a means to fuel violent radicalisation and facilitate 
terrorist  attacks  would  not  disappear.  In  addition,  as  explained  above,  authors  of  messages 
aiming at provoking others to commit terrorist offences, recruiting for terrorism and training 
for terrorism could not be prosecuted. This represents an important weakness from the point 
of view of security.  

•  Magnitude of the impact on security: + 

5.2.2.  Economic impact  

Indirect economic impact on public authorities and tax-payers: 

It would be similar to the one described above under option 1. 

Direct economic impact on internet service providers and consumers 

In this case, there would be a direct economic impact on internet service providers, deriving 
from the costs of filtering technology. The level of costs differs, however, from one method to 
another.  "Filtering  access  to  specific  IPs  is  comparatively  cheap  because  the  "router" 
machines  that  internet  service  providers  use  to  provide  access  to  the  Internet  to  their 
customers  have  built-in  blocking  capabilities.  Unlike  other  web  filtering  technologies,  no 
further equipment is necessary"75. By contrast, URL filtering would be extremely expensive: 
"comparing  all  URLs  flowing  through  an  internet  service  provider's  network  with  a  list  of 
URLs  to  be  blocked  is  "expensive"  in  the  computational  sense  –  it  requires  a  significant 
amount of computing power. Performing these computations would slow down the switches 
(the  hardware  that  bridges  different  parts  of  computer  networks  together)  and  routers 
substantially,  decreasing  the  overall  capacity  of  the  network  and  degrading  the  speed  of 
Internet  access  provided  to  customers.  Internet  service  providers  would  be  required  to 
purchase  additional  switches  and  routers  to  maintain  the  network’s  prior  level  of  traffic"76. 
Costs resulting from DNS and dynamic filtering would be in between. The former "can also 
be difficult for some Internet service providers to manage, depending on the configuration of 
their  systems"77.  In  the  case  of  the  later,  "internet  service  providers  may  have  to  purchase 
additional hardware to allow for the computationally expensive inspection of incoming traffic 
by the filtering software, although some internet service providers already offer this service as 
an option to their clients"78. 

75 

76 

77 

78 

See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 89. 
See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 92. 
See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 90. 
See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 91. 

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42 

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Internet service providers would suffer an economic impact unless they are able to transfer the 
total of the incurred costs to consumers without seeing their sales figures reduced.  

Indirect impact on internet service providers and consumers 

In addition to the costs mentioned before, incorrect blocking of legitimate material represents 
an economic impact. Collateral blocking may have serious legal and economic implications. 
Blocking  users  from  accessing  commercial  websites  may  cause  important  losses  to  the 
companies  selling  or  providing  services  through  the  Internet  as  well  as  to  their  clients. 
Furthermore, consequences of interrupting the advertising which finances most websites must 
be  taken  into  account.  Therefore,  although  in  terms  of  initial  investment  it  is  considered  a 
relatively cheap system, IP filtering might end up being the most expensive. Although not to 
the  extreme  of  IP  filtering,  DNS  poisoning  is  also  prone  to  over-blocking.  URL  filtering, 
which is so expensive in terms of initial investment, is by contrast much more precise and less 
likely to cause collateral blocking. In this sense, URL filtering may end up being not such an 
expensive system. As for dynamic blocking, since it automates censorship, bypassing a black 
list  created  by  humans  and  using  instead  a  set  of  criteria  of  characteristics  of  the  kind  of 
material  that  should  be  censored,  there  is  an  obvious  risk  that  legitimate  contents  fulfil  the 
predetermined criteria and are consequently blocked. 

It should be noted that the most of the direct costs of URL filtering and indirect costs of IP 
filtering referred to above can be overcome by URL hybrid filtering. This method combines 
the best of both IP and URL techniques: it is considered as precise as pure URL filtering and 
yet considerably cheaper, because filtering based on URL is only applied to pre-selection of 
websites based on IP filtering.  

The economic costs analysed so far may be summarized as follows: 

Economic  costs  for 
ISPs 

Direct costs 

Indirect costs 

Global  assessment  of 
costs 

IP filtering 

URL filtering 

-  

---  

URL hybrid filtering 

-  

DNS filtering 

Dynamic filtering 

--  

--  

--- 

0 

0 

-- 

- 

-- 

-- 

- 

-- 

-/-- 

The  costs  deriving  from  imposing  any  of  these  filtering  methods  to  all  internet  service 
providers  based  in  the  EU  is  impossible  to  calculate.  EuroISPA,  the  world's  largest 
association  of  Internet  Service  Providers,  representing  approximately  1,000  internet  service 
providers across the EU, considers it unfeasible to provide for any figure, arguing that there 
are so many variables in the composition of systems that might be used for blocking, that it is 

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43 

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not  possible  to  give  general  figures.  Johnny  Ryan79  confirms  this  statement  detailing  the 
factors that make a general estimation of costs impossible, in particular: 

1. 

2. 

3. 

The different sizes of networks operated by internet service providers and the amount 
of traffic passing across it. This is a very important variable in the implementation of 
a filtering method. It determines how much additional hardware or personnel will be 
required to process the filtering without reducing the speed of the network. 

The  network  typology  that  changes  from  one  internet  service  provider  to  another. 
The more centralised the network, the fewer the locations where the filtering must be 
implemented and the less expensive it becomes, since equipment and personnel costs 
depend on the number of places where the filtering is carried out. 

The  wide  spectrum  of  technology  with  different  capabilities  used  by  the  different 
internet service providers so that they would not be in the same position if they were 
obliged  to  implement  a  filter  method.  Some  internet  service  providers  would  be 
ready to filter but others would have to buy new expensive hardware. 

If  general  costs  are  impossible  to  estimate,  the  costs  of  a  specific  method  of  filtering 
implemented by a single internet service provider can be calculated, but must be considered a 
specific example only. HEA Net is an Irish research and education network which provides 
broadband  internet  access  to  approximately  100,000  computers  at  4,000  schools  and  has 
implemented  URL  filtering.  The  costs  of  developing  and  building  this  system  from  scratch 
have  been  close  to  1,000,000  euros,  which  represents  around  10  euros  per  computer.  This 
case-study  represents  an  indicator  of  the  upper-limit  of  what  the  most  expensive  method  of 
filtering – URL-filtering - might cost, if the internet service provider had to start from zero. It 
does not however include maintenance costs80. 

Additional direct economic impact deriving from filtering methods relying on a black list  

"A system based on IP, DNS or URL filtering relies on a black-list of prohibited websites. If a 
black-list  was  introduced  to  censor  violent  radicalisation  material  in  the  EU,  a  centrally 
maintained  and  up-dated  black  list  could  be  instantaneously  accessed  by  ISPs  operating 
throughout  the  Union,  instantly  blocking  newly  added  websites"81.  Therefore,  for  these 
filtering  methods,  it  is  necessary  to  study  the  costs  deriving  from  maintaining  a  black-list, 
although it should be noted that centralisation would moderate the costs considerably.  

Furthermore, these costs should not necessarily be supported by internet service providers or 
at  least  not  entirely,  since  law  enforcement  should  be  involved  in  the  selection  of  the  list's 
elements. Actually, if all costs were assumed by public authorities, taking into consideration 
the ongoing work in many Member States to identify and study this kind of material on the 
Internet, a central black-list might actually become economically efficient, by avoiding double 

79 

80 

81 

"Countering militant Islamist radicalisation on the Internet – A user driven strategy to recover the web", 
mentioned above, in footnote 6, pp. 108-109. 
See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, pp. 110-112. 
See  "Countering  Militant  Islamist  radicalisation  on  the  Internet:  a  user  driven  strategy  to  recover  the 
web", Institute of European Affairs 2007, referred to above, in footnote 6, p. 89. 

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44 

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work82. It can then be concluded that maintaining and up-dating a black-list would at least not 
amount to a negative economic impact on public authorities (and eventually tax-payers). 

The  Internet  Watch  Foundation  in  the  United  Kingdom,  an  organisation  that  is  a  key 
component  in  the  UK’s  Industry/Police/Government  partnership  for  tackling  illegal  content 
online,  runs  a  black-list  for  illegal  content.  The  estimated  costs,  in  this  case,  include  the 
development  and  building  of  the  database,  approximately  110,000  euros,  as  well  as 
maintenance and regular up-grading costs of approximately 30,000 euros per year and human 
resources costs of about 60,000 euros per year. 

But  this  list  might  also  be  co-financed,  as  it  is  the  case  of  the  black-list  compiled  and 
maintained by the Internet Watch Foundation. The Internet Watch Foundation relies on both 
private and public funding.  

Therefore, if the black-list were to be financed by internet service providers to some extent, 
the  costs  indicated  in  the  table  above  would  slightly  increase  for  all  blocking  systems  save 
dynamic filtering. 

5.2.3.  Human rights impact  

Direct impact on freedom of expression 

This option implies a direct restriction of the freedom of speech. The extent of the negative 
consequences  depends  on  the  filtering  system  used.  First  of  all,  dynamic  filtering  clearly 
limits  freedom  of  speech  and  access  to  information  because  it  automates  censorship, 
bypassing a black list created by humans and using instead a set of criteria of characteristics 
of the kind of material that should be censored. Freedom of speech and access to information 
would be subject to automated judgement calls determined by software designers. Under this 
system,  a  separate  assessment  of  the  necessity  and  proportionality  of  blocking  a  specific 
content could not take place.  

The  systems  relying  on  a  black  list  imply  human  intervention  in  the  establishment  and  up-
dating of the list. Therefore, the impact on the freedom of speech and access to information 
depends  on  two  factors:  first  of  all,  how  and  by  whom  the  content  of  the  black-list  is 
determined as well as on the legal remedies offered to web owners in order to challenge the 
decision  of  inclusion.  Secondly,  it  depends  on  the  degree  of  precision  of  the  method  of 
filtering. Collateral blocking, referred to above, may not only cause serious economic losses 
but  necessarily  involves  a  violation  of  the  freedom  of  speech. Assuming  that  the  manner  in 
which  the  black-list  was  maintained  and  up-dated  incorporated  enough  human  rights' 
safeguards  so  that  it  did  not  involve  any  further  restriction  of  freedom  of  speech  than 
necessary, the table below reflects the impact of the different blocking methods on freedom of 
speech.  

Filtering methods  

Impact on freedom of speech 

82 

Avoiding double-work is in fact the logic behind the project "Check the web" launched by the German 
presidency in close co-operation with Europol and aiming at centralising information on Islamic radical 
websites  identified  by  Member  States.  It  does  not  however  intend  to  block  any  of  the  materials 
identified. 

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IP filtering 

URL filtering 

URL hybrid filtering 

DNS filtering 

Dynamic filtering 

-- 

- 

- 

-- 

--- 

It  should  be  noted  that  terrorist  activists  and  supporters  are  increasingly  using  dynamic 
communication  services  through  the  Internet  instead  of  static  websites.  Discussion  forums, 
chat-rooms or instant messengers are therefore of growing importance. The access to these is 
often restricted. Therefore, if filtering methods were to be extended to such internet services, 
concerns regarding freedom of speech would increase. Moreover, this would add concerns as 
regards the right to privacy.  

Indirect impact on right to life and right to integrity 

Forbidding internet service providers to give access to material to block the dissemination of 
messages  through  the  Internet  aiming  at  public  provocation  to  commit  terrorist  offences, 
recruitment or training for terrorism would have as its final aim the protection of human rights 
of  potential  victims,  in  particular  the  right  to  life  and  the  right  to  physical  and  mental 
integrity,  similarly  to  the  offences  introduced  in  the  Council  of  Europe  Convention  on  the 
prevention  of  terrorism.  From  this  point  of  view,  such  prohibition  has  a  positive,  although 
indirect  impact  on  human  rights  that  should  also  be  taken  into  consideration.  However,  the 
magnitude  of  such  impact  is  rather  moderate  since  it  suffers  from  the  same  weaknesses 
identified when analysing the security impact of this option. 

•  Magnitude of the impact on the right to life and the right to integrity: + 

It should be noted that the assessment of impacts resulting from option 2 and especially of its 
security impact, is based on two main circumstances: firstly, that forbidding internet service 
providers  to  give  access  to  violent  radical  material  will  never  allow  law  enforcement 
authorities  to  investigate,  prosecute  and  convict  the  activists  and  supporters  behind  the 
dissemination  of  terrorist  propaganda  and  terrorist  expertise,  and  secondly,  that  existing 
technology  suffers  from  important  limitations,  in  particular  current  filtering  methods  can  be 
circumvented  and  have  been  designed  specifically  for  web  access  and  do  not  function 
appropriately  for  most  other  Internet  services  including  “peer-to-peer”  communication 
technologies. 

While  the  first  of  these  factors  will  remain  the  same,  future  developments  are  likely  to 
improve  existing  technology  and  may  modify  the  statements  made  as  regards  the  second 
factor.  Concerning  the  possibility  of  supporting  the  development  of  new  and  more  efficient 
filtering  technologies,  one  should  consider  that:  although  filtering  techniques  may  improve, 
the manner in which the Internet is built, the various services it provides and the amount of 
information  it  contains,  makes  it  hardly  possible  to  find  a  system  with  no  gaps,  no  less 
because of constantly emerging new services. In this sense, the effort and costs of developing 

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and,  especially,  implementing  such  technology  appear  to  be  disproportionate  to  the  results 
that would be achieved.  

Furthermore, as stated above, it should be considered that discussion forums, chat rooms and 
instant  messengers  are  increasingly  used  by  terrorist  activists  and  supporters.  If  filtering 
techniques were to be generally extended to postings and messages on discussion forums, chat 
rooms  and  instant  messengers,  concerns  regarding  the  respect  for  human  rights  would 
considerably increase, not only with respect to freedom of speech but also the right to privacy. 
Necessity and proportionality make such interferences unjustified in a democratic society.  

It appears more appropriate to focus on the surveillance and prosecution of terrorist activists 
and  supporters  behind  the  dissemination  of  terrorist  propaganda  and  terrorist  expertise. 
Therefore,  funding  projects  and  studies  aiming  at  enhancing  law  enforcement  authorities' 
capabilities and expertise to detect and analyse radical violent material as well as to trace their 
authors  within  the  existing  limitations  and  requirements  of  the  legal  framework  is  analysed 
below. 

5.3. 

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

5.3.1. 

Security impact: 

Law enforcement authorities would receive the expertise of academics, would increase their 
own  knowledge  by  specific  training  -  including  the  development  of  technical  and  linguistic 
skills- and share their knowledge with law enforcement authorities of other Member States in 
order  to  develop  and  exchange  efficient  methods  of  monitoring.  The  results  of  the  studies 
foreseen  under  this  option  could  also  advise  the  adoption  of  non-legislative  measures  to 
prevent  the  distribution  of  violent  radical  content  on  the  Internet,  including  co-operation 
between  NGOs  and  law  enforcement  authorities  as  well  as  to  the  development  of 
methodologies and adapted technological tools to efficiently detect violent radical content on 
the Internet. 

It can be concluded that law enforcement authorities would be empowered in order to detect 
and analyse violent radical content on the Internet. They would equally be in a better position 
to identify the individuals behind such content.  

Pro-active policing of violent radical content on the Internet can provide for key information 
in  order  to  understand  the  terrorist  trends,  anticipate  terrorist  actions  and  can  provide  for 
crucial data to prevent attacks. In this sense, enhancing law enforcement authorities' capacities 
and  expertise  to  counter  the  use  of  the  Internet  for  terrorist  purposes  is  worthy  to  be 
considered as a standing-alone option. However, option 3 does not provide for a legal basis to 
open  an  investigation  and  prosecute  the  author  of  the  messages  of  terrorist  propaganda  or 
terrorist expertise. In order to overcome these limitations, option 3 should be accompanied by 
adequate criminal law measures. Prohibitions such as those studied under option 2, would not 
be able to overcome such limitations since they do not constitute criminal law.  

As  regards  the  added  value  of  European  Union  funding  over  national  funding,  it  should  be 
noted  that  the  Commission  plans  to  finance  training  and  tools  of  national  law  enforcement, 
through  trans-national  projects  that  encourage  sharing  resources  and  avoiding  double  work. 
Moreover,  financing  through  the  Commission  is  efficient  because  it  can  exploit  existing 
bodies  and  infrastructure  (i.e.  the  Joint  Research  Centre  to  develop  adequate  software, 

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European Judicial Training Network for judicial training) it produces economies of scale (i.e. 
results of studies will be automatically shared) and encourages the division of tasks through 
trans-national projects. 

•  Magnitude of the impact on security: ++ 

5.3.2.  Economic impact 

Direct economic impact for public authorities and tax-payers 

Direct  costs  deriving  from  this  option  would  be  mainly  assumed  by  the  budget  of  the 
Commission.  According  to  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, grants financing projects must 
cover at least 65% of the costs, the maximum being determined in each of the annual work 
programmes. In the case of the contracts of studies, the budget of the Commission would fully 
cover the costs. The total costs for the Commission in 2008 are estimated in 1.200.000 euros. 
In  a  second  phase,  studies  might  lead  to  the  development  of  non-legislative  measures, 
methodologies and tools to support law enforcement authorities' work. Further costs would be 
then generated, to be financed with charge to future Commission's budgets. The magnitude of 
these would be probably determined in the studies. Nevertheless, it can be concluded that the 
costs  estimated  for  2008  are  not  significant  in  the  Commission's  budget  and  that,  although 
costs generated in a second phase may be more important, the development of non-legislative 
measures, methodologies and tools at EU level would be, by far, more efficient than if similar 
actions were undertaken at national level. 

Under  Article  5  of  the  Decision  referred  to  above,  the  Programme  is  destined  for  law 
enforcement  agencies,  other  public  and/or  private  bodies,  actors  and  institutions,  including 
local,  regional  and  national  authorities,  social  partners,  universities,  statistical  offices,  non-
governmental  organisations,  public-private  partnerships  and  relevant  international  bodies.  It 
follows  that  the  remaining  percentage  of  costs  will  be  mainly  financed  by  the  public 
authorities  of  Member  States.  It  must  be  noted  that  these  costs  can  be  analysed  in  two 
different ways. If the project was going to be developed even in the absence EU funding, the 
economic impact will imply only a change of funding source: EU funding instead of funding 
obtained from public authorities in the Member States. In this case, the Commission's support 
constitutes  important  savings  at  national  level  since  the  costs  are  distributed  among  a  much 
bigger number of tax-payers. However, it should be assumed that in many cases EU funding 
is decisive since it covers most of the costs of the projects. Member States would then face 
additional, although quite limited, costs. 

•  Magnitude of the impact on economy: - 

Indirect economic impact for internet service providers and consumers 

Indirectly,  the  possibility  of  additional  and  more  efficient  surveillance  of  violent  radical 
content  might  lead  to  further  investigations  on  terrorist  activities.  It  follows  that  internet 
service providers might be asked more often for traffic data under the data retention Directive. 
Therefore,  indirectly,  option  3  may  lead  to  additional  costs  for  internet  service  providers 
deriving from more extended use of the Data retention Directive. This is explained in detail 
below, under option 5. However, it is important to note that under option 3 law enforcement 

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authorities  could  only  ask  for  location  and  traffic  data  if  the  dissemination  of  terrorist 
propaganda or terrorist expertise was a serious crime in the Member State where the internet 
service provider is based. Another possibility would be that, in the course of the investigation, 
another behaviour qualified as serious crime in that Member State is discovered.  

•  Magnitude of the impact on economy: - 

5.3.3. 

Impact on human rights: 

Direct impact on freedom of expression 

Since the dissemination of messages of terrorist propaganda or terrorist expertise would not 
become illegal under option 3, no content circulating on the Internet could be censored and no 
individual could be prosecuted for this behaviour (unless this was already possible according 
to national law). It follows that option 3 does not introduce restrictions to freedom of speech. 
Similarly, concerning the right to privacy, further and more efficient surveillance on violent 
radical contents would not amount to any restriction. The absence of a legislative framework 
implies that the rules on the right to privacy and data protection at both EU and national level 
remain  unchanged  and  that  law  enforcement  authorities  continue  to  respect  the  limits 
established  by  the  law.  Nevertheless,  the  human  rights  consequences  will  be  the  same  as 
under option 1.  

•  Magnitude of the impact on human rights: - 

Indirect impact on right to life and right to integrity 

Enhancing the capabilities and expertise of law enforcement authorities has the final aim of 
protecting  potential  victims,  in  particular  their  right  to  life  and  their  right  to  physical  and 
mental  integrity.  In  fact,  such  protection  concerns  all  citizens,  since  experience  shows  that 
anyone is a potential victim. From this point of view, these practical measures have a positive, 
although  indirect  impact  on  human  rights  that  should  also  be  taken  into  consideration.  The 
magnitude of such impact logically corresponds to the level of increased security achieved by 
this option. 

As stated above, efficient detection and analysis of violent radical content should provide for 
crucial  data  contributing  to  successful  investigations  and  prosecutions.  In  addition,  law 
enforcement authorities conveniently trained and equipped would considerably improve their 
chances to trace and identify the individuals behind the dissemination of terrorist propaganda 
and terrorist expertise. 

•  Magnitude of the impact on right to life and to integrity: ++ 

5.4. 

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

A  political  statement  advising  Member  States  to  ratify  the  Convention  might  accelerate 
signatures and ratifications or even increase them. However, as a political statement, it would 
lack  a  binding  character.  It  would  be  merely  a  political  reinforcement  of  Member  States' 
commitment to ratify the instrument, already expressed by their signatures thereof – with the 
exception of four Member States which have not signed the Convention. Even more, it should 
be considered that such recommendation has already been included in the list of actions of the 

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counter-terrorism action plan, advising Member States to sign and ratify various international 
instruments relevant to the fight against terrorism. From this point of view, a specific political 
instrument would represent even less of a change. 

More importantly, assuming that the statement made a difference for the quick signature and 
ratification  by  all  Member  States,  the  harmonised  incrimination  of  public  incitement  to 
terrorism,  terrorist  recruitment  and  training  would  remain  outside  the  EU  legal  framework. 
Harmonisation  would  indeed  be  achieved  through  the  signature  and  ratification  of  the 
Convention  by  all  Member  States.  However,  such  harmonisation  will  not  bring  about  the 
same  results  as  legislation  at  EU  level83.  It  can  then  be  concluded  that  the  impact  of  this 
option on security, economy and human rights will be quite similar to that of the status-quo 
option, assessed above.  

83 

See under section 5.5.1 below the added value of the revision of the Framework Decision in relation to 
the existing Council of Europe Convention on the prevention of terrorism.  

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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  

5.5.1. 

Security impact  

The revision of the Framework Decision on combating terrorism would explicitly incriminate 
the use of the Internet as a means of public incitement to terrorism, recruitment and training 
through the dissemination of bomb-making and other terrorist expertise, at least as long as it 
falls  within  the  jurisdiction  of  the  European  Union.  In  addition  to  the  impact  on  security 
resulting from option 1, option 5 would bring clear added value in terms of the application of 
harmonised  rules  on  penalties  and  jurisdiction  and  ensure  the  application  of  related  EU 
instruments.  Moreover,  it  would  guarantee  a  consistent  approach  between  the  Council  of 
Europe and the European Union, putting the EU in a stronger position to request co-operation 
from third countries and private operators. These added benefits are detailed below: 

Added  value  of  the  revision  of  the  Framework  Decision  on  combating  terrorism  vis-à-vis 
relying on the Council of Europe Convention on the prevention of terrorism: 

1. 

The  new  offences  would  benefit  from  all  previous  harmonisation  achieved  by  the 
European Union in the field of the fight against terrorism  

•  Rules on penalties: Article 5 in relation with Article 6 of the Framework Decision 
on  combating  terrorism  imposes  a  detailed  regime  on  penalties  and  applicable 
particular circumstances for the offences mentioned in that Framework Decision. 
Most  importantly,  Article  5(1)  contains  a  link  to  the  European  Arrest  Warrant. 
This  means  that  if  the  offences  of  public  provocation  to  commit  a  terrorist 
offence, recruitment for terrorism and training for terrorism would be included in 
the Framework Decision on combating terrorism: 

(a) 

(b) 

The  new  offences  should  be  punished  with  imprisonment  of  at  least 
one  year.  Other  penalties,  such  as  pecuniary  sanctions,  would  not  be 
sufficient. 

The  Council  Framework  Decision  of  13  June  2002  on  the  European 
arrest  warrant  and  the  surrender  procedures  between  Member  States 
would  apply  automatically  to  these  three  offences.  If  these  offences 
were  not  included  in  Articles  1  to  4  of  the  Framework  Decision,  the 
application of the European Arrest Warrant would depend on whether 
the  penalties'  established  by  the  Member  States  would  meet  the 
thresholds  foreseen  in  the  Framework  Decision  on  the  European 
Arrest  Warrant  which  are  a  maximum  custodial  sentence  of  at  least 
three  years  for  certain  serious  crimes,  including  terrorism,  and  a 
maximum custodial  sentence of at  least one year with the possibility 
of refusal by the executing State if the behaviour is not a crime under 
its national law.  

•  Rules  on  jurisdiction:  Article  9(2)  includes  rules  solving  positive  conflicts  of 
jurisdiction, a set of criteria to determine jurisdiction when several Member States 
are  competent.  Such  rules  contribute  to  ensure  fast  and  efficient  prosecution  of 

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trans-national terrorist offences. If the offences of public provocation to commit a 
terrorist  offence,  recruitment  for  terrorism  and  training  for  terrorism  would  be 
included  in  the  Framework  Decision  on  combating  terrorism,  the  prosecution  of 
the new offences would benefit from the application of these rules. 

•  The  Council  Decision  2005/671/JHA  on  the  exchange  of  information  and 
cooperation concerning terrorist offences: It ensures the provision of information 
concerning terrorist offences as laid down in the Framework Decision to Europol, 
Eurojust  and  the  Member  States  when  criminal  investigations  concerning 
prosecutions and convictions for terrorist offences which affect or may affect two 
or  more  Member  States.  Additionally,  it  foresees  the  setting  up  of  joint 
investigation  teams  when  appropriate  to  conduct  criminal  investigations  into 
terrorist  offences  and  obliges  Member  States  to  ensure  that  requests  from  other 
Member  States  for  mutual  legal  assistance  and  recognition  and  enforcement  of 
judgements  in  connection  with  terrorist  offences  are  dealt  with  as  a  matter  or 
urgency and are given priority. If the offences of public provocation to commit a 
terrorist  offence,  recruitment  for  terrorism  and  training  for  terrorism  would  be 
included in the Framework Decision on combating terrorism, its investigation and 
prosecution would benefit from such enhanced co-operation.  

By  introducing  the  new  offences  in  the  Framework  Decision  on  combating  terrorism,  law 
enforcement personnel and judges are further empowered and investigations, prosecutions and 
convictions  are  facilitated.  Public  provocation  to  commit  terrorist  offences,  recruitment  for 
terrorism and training for terrorism would be fought with the full EU arsenal of measures on 
terrorism. 

1. 

The  new  offences  would  benefit  from  the  advantages  of  third  pillar  instruments,  in 
particular Framework Decisions, vis-à-vis international treaties and conventions 

•  Adoption  by  the  Council  implies  an  automatic  obligation  for  Member  States  to 
adapt their national legislation. In contrast with the lengthy procedures to sign and 
ratify  international  conventions  that  can  last  for  many  years,  Framework 
Decisions enter into force exactly as first pillar instruments do, most often the day 
of  their  publication  in  the  Official  Journal  and  set  out  a  restricted  period  for 
implementation. 

•  Third  pillar  legislation  becomes  EU  acquis:  Therefore,  it  is  compulsory  for  new 
Member States to adapt their legislation to existing Framework Decisions before 
joining  the  EU.  By  contrast,  candidate  countries  are  not  obliged  to  adopt 
international conventions or treaties. 

•  Member  States  must  notify  the  national  measures  implementing  Framework 
Decisions  to  the  Council  and  Commission.  By  contrast,  such  an  obligation  does 
not  exist  as  regards  the  national  measures  adopted  to  implement  international 
conventions or treaties. 

•  The  correct  and  full  implementation  of  Member  States  is  evaluated  as  regards 
Framework Decisions: Framework Decisions generally foresee the establishment 
of  an  implementation  report  from  the  Commission  and  its  assessment  by  the 
Council.  Obviously,  the  European  institutions  are  not  empowered  to  assess  the 

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correct  implementation  of  international  conventions  and  treaties  by  Member 
States. 

•  The  European  Court  of  Justice  is  entitled  to  interpret  Framework  Decisions  via 
preliminary rulings. Sixteen Member States have accepted so far the authority of 
the  European  Court  of  Justice  to  deliver  preliminary  rulings  as  regards 
instruments  of  the  third  pillar.  The  European  Court  of  Justice  lacks  any  direct 
jurisdiction over international conventions and treaties. 

•  The  European  Court  of  Justice  has  stated  that  national  courts  are  obliged  to 
interpret  national  rules  according  to  Framework  Decisions.  According  to  the 
Pupino case-law, national courts are required to interpret rules of national law, as 
far  as  possible,  in  the  light  of  the  wording  and  purpose  of  the  Framework 
Decision. 

By introducing the new offences in the Framework Decision on combating terrorism, Member 
States are expected to adapt their legislation earlier. Furthermore, European institutions could 
control the correct implementation and interpretation of the instrument. 

1. 

The new offences affirm the position of the EU in the international context & vis-à-
vis the private sector  

•  Co-operation  with  third  countries  and  internet  service  providers  is  required  to 
tackle  public  provocation  to  commit  terrorist  offences,  recruitment  for  terrorism 
and  training:  Terrorism  exceeds  the  territory  and  jurisdiction  of  the  European 
Union,  especially  when  it  comes  to  the  use  of  the  Internet  for  terrorist  purposes 
(i.e.  76%  of  the  Islamist  terrorist  websites  are  hosted  by  internet  services 
providers  based  in  the  United  States).  Therefore,  international  co-operation  is 
required to tackle public provocation to commit terrorist offences, recruitment for 
terrorism and training for terrorism. In particular, co-operation may be crucial in 
order to trace the terrorist activists and supporters behind such dissemination and, 
secondarily, disabling access to the relevant websites. A common ground shared 
by  all  Member  States  will  strengthen  the  position  of  the  European  Union  to 
achieve positive results in international fora such as the G8, the United Nations as 
well  as  through  bilateral  co-operation  with  relevant  third  countries.  In  addition, 
since all Member States are bound by EU legislation, the European Union could 
guarantee  reciprocity.  Similarly,  the  European  Union  would  lack  of  legitimacy 
when  seeking  co-operation  and  agreements  from  internet  service  providers  if 
public  provocation  to  commit  a  terrorist  offence,  recruitment  for  terrorism  and 
training for terrorism were not outlawed at European Union level. 

•  Outlawing  public  provocation  to  commit  a  terrorist  offence,  recruiting  for 
terrorism and training for terrorism would be in line with the Communication on 
cyber-crime:  The  Communication  refers 
terrorism  and 
glorification  of  terrorism  when  referring  to  illegal  content84.  It  envisages  certain 
actions  in  order  to  fight  against  illegal content,  such  as  initiating  and  promoting 
dialogue with third countries on technical methods to fight illegal content as well 

incitement 

to 

to 

84 

Communication referred to above in footnote 19, p. 

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as  on  procedures  to  shut  down  illegal  websites,  also  with  a  view  to  the  possible 
development of formal agreements with neighbouring and other countries on this 
issue  as  well  as  developing  EU-level  voluntary  agreements  and  conventions 
between  public  authorities  and  private  operators,  especially  Internet  service 
providers85. Such actions are not foreseen as regards harmful content. 

By  introducing  the  new  offences  in  the  Framework  Decision  on  combating  terrorism,  law 
enforcement  authorities  could  benefit  in  their  investigations  and  prosecutions  from  stronger 
and  more  successful  international  co-operation.  They  could  also  request  the  disablement  of 
access to a relevant websites hosted by an internet service provider based in a third country in 
those  cases  where  this  would  not  interfere  or  conflict  with  intelligence  and  investigation 
purposes. 

•  Magnitude of the impact on security: ++ 

5.5.2.  Economic impact 

Economic impact on public authorities and tax-payers:  

There  are  no  direct  costs  identified.  However,  the  revision  of  the  Framework  Decision  on 
combating terrorism might involve indirect costs. These costs would be similar to those that 
would  stem  from  the  signature  and  ratification of the Council  of Europe  Convention on  the 
prevention of terrorism by all Member States, although they are likely to be marginally higher 
because of the link of the Framework Decision on combating terrorism with EU co-operation 
instruments  referred  to  under  the  security  impact.  The  new  means  to  combat  the  terrorist 
threat would result in an increased co-operation of national law enforcement authorities both 
with  industry  and  law  enforcement  authorities  in  other  Member  States.  This  should  lead  to 
improved  results,  which  implies  more  successful  investigations  and  more  prosecutions  than 
presently. However, further international co-operation and increased contacts with industry as 
well  as  increased  prosecutions  involve  an  additional  work-load  for  law  enforcement 
authorities. 

The  hypothesis  of  the  additional  work-load  resulting  from  the  revision  of  the  Framework 
Decision  on  combating  terrorism  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.  The  report  clarifies  that  this  is 
partially explained by the lack of legal basis for arrests or investigations using the Internet in 
this manner86.  

If  the  increased  activity  of  law  enforcement  authorities  required  the  allocation  of  further 
resources,  these  should  come  from  the  general  national  budget.  Tax-payers  would  not 
necessarily assume higher taxes: the budget allocated to law enforcement and security may be 
increased at the expense of other public policies.  

•  Magnitude of the impact on economy: - 

Economic impact on internet service providers and consumers:  

85 
86 

Communication referred to above in footnote 19, p. 10. 
See the EU Terrorism Situation and Trend Report 2007 of Europol, p. 21. 

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Option 5 would not involve direct costs for companies or consumers. Nevertheless, the same 
indirect costs as those detailed under option 1 have been identified.  

•  Magnitude of the impact on economy: - 

5.5.3. 

Impact on human rights: 

Direct impact on freedom of expression 

Similarly to what has been explained under option 1 about the Convention on the prevention 
of terrorism, the inclusion of public provocation to commit terrorist offences, recruitment and 
training  for  terrorism  under  the  Framework  Decision  on  combating  terrorism  has  a  direct 
impact  on  the  right  to  freedom  of  speech.  This  is  especially  true  of  the  offence  of  public 
provocation to commit terrorist offences. 

The analysis of this impact will therefore be very close to that of option 1. In fact, while the 
expected  increase  of  investigations  or  prosecutions  is  relevant  to  figure  out  the  impact  of  a 
criminal measure on security or on economy, the same does not apply to its effects on human 
rights.  A  measure  must  conform  to  human  rights  standards  irrespective  of  the  number  of 
additional  investigations  or  prosecutions  stemming  from  it.  A  criminal  measure  which  does 
not  respect  human  rights  does  not  become  more  acceptable  because  it  is  hardly  applied  in 
practice.  Conversely,  a  criminal  measure  compliant  with  the  ECHR  does  not  become  less 
acceptable  because  it  is  widely  applied.  In  consequence,  the  main  question  is  whether  the 
restrictions of the freedom of speech deriving from the revision of the Framework Decision 
on  combating  terrorism  would  be  covered  by  Article  10(2)  of  the  ECHR.  Insofar  as  the 
approach  of  the  Council  of  Europe  Convention  on  the  prevention  of  terrorism  is  respected, 
including  its  safeguards  and  requirements,  the  revision  of  the  Framework  Decision  on 
combating terrorism should comply with the ECHR.  

In  particular,  public  provocation  to  commit  terrorist  offences  should  require  that  two 
conditions  are  met87  as  explained  in  the  explanatory  report  to  the  Convention  on  the 
prevention of terrorism. Firstly, there has to be a specific intent to incite the commission of a 
terrorist  offence,  which  is  supplemented  with  the  requirements  in  paragraph  2  that 
provocation must be committed unlawfully and intentionally. Secondly, the result of such an 
act must be to cause a danger that such an offence might be committed.  

The  specific  intent  to  incite  the  commission  of  a  terrorist  offence  is  of  special  relevance  to 
ensure  that  the  dissemination  of  information,  opinions,  views  on  terrorism  and  political 
conflicts as well as encouraging public debate on such issues is fully excluded from the scope 
of the revision of the Framework Decision on combating terrorism. 

However, this option entails a risk linked to the negotiation process. Indeed, any Commission 
proposal to insert the definition of the offences of the Council of Europe Convention on the 
prevention  of  terrorism  into  the  Framework  Decision  on  combating  terrorism  is  open  to 
modifications during the negotiations by the Member States. Bearing in mind that the Council 
of Europe Convention on the prevention of terrorism is an outcome of intensive negotiations, 
it  must  be  seen  as  the  best  compromise  in  this  sensitive  area  aiming  at  enhancing  the 

87 

See  the  Explanatory  report  to  the  Council  of  Europe  Convention  on  the  prevention  of  terrorism, 
paragraphs 99 and 100. 

EN 

55 

   EN 

 
                                                 
efficiency of the fight against terrorism while ensuring the protection of fundamental rights. It 
follows that this option would require that all the institutions involved pay particular attention 
that  the  wording  of  the  Council  of  Europe  convention  is  maintained  throughout  the 
negotiation process. 

•  Magnitude of the restriction of freedom of speech: - 

Indirect impact on right to life and right to integrity 

The  incrimination  of  public  provocation  to  commit  terrorist  offences,  recruitment  for 
terrorism  and  training  for  terrorism  has  as  its  final  aim  the  protection  of  human  rights  of 
potential victims, in particular the right to life and the right to physical and mental integrity. 
In fact, such protection concerns all citizens, since experience shows that anyone is a potential 
victim.  From  this  point  of  view,  the  amendment  of  the  Framework  Decision  would  have  a 
positive,  although  indirect  impact  on  human  rights  that  should  also  be  taken  into 
consideration. The magnitude of such impact logically corresponds to the level of increased 
security achieved by the Convention. A higher level of security results in a lower the threat to 
the right to life and the right to physical and mental integrity of potential victims.  

•  Magnitude of the impact on right to life and to integrity: ++ 

6. 

SECTION 6: COMPARING OPTIONS 

6.1. 

Summary table: costs and benefits 

Options 

Security impact

Economic impact 

Human rights impact 

Impact for 
public 
authorities

Impact 
ISPs 
consumers 

for 
and 

Freedom 
of 
expression 

Right 
life  

to 

integrity 

+ 

+ 

Option 1 

No policy change 

Option 2 

Filtering obligations  

IP filtering 

URL filtering 

- 

- 

+ 

+ 

- 

- 

-- 

-- 

-- 

- 

EN 

56 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
URL hybrid filtering 

DNS filtering  

Dynamic filtering 

Option  3  Practical 
support to LEA 

++ 

Option 4 

+ 

Political statement  

Option 5 

++ 

Revision  Framework 
Decision 

- 

-- 

-/-- 

-  

- 

- 

- 

- 

- 

- 

-- 

--- 

- 

- 

++ 

+ 

-  

++ 

EN 

57 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
6.2. 

Advantages and drawbacks of the policy options 

Policy options 

Advantages 

Drawbacks 

Option 1: no policy change. 

Option 2: Forbidding internet 
service  providers 
to  give 
access  to  material  to  block 
dissemination 
the 
of 
the 
through 
messages 

(cid:131)  Empowerment  of 

law 
enforcement  to  fight  new 
modus 
of 
including 
terrorists, 
committed 
offences 
through the Internet.  

operandi 

(cid:131)  Respect  of  freedom  of 

expression.  

(cid:131) 

Indirect 
right 
to 
integrity 

protection 
life  and 

of 
to 

(cid:131)  No  need  for  new  EU  or 

EC legislation .  

(cid:131)  Direct 

restriction 

of 
terrorist  propaganda  and 
expertise 
the 
Internet. 

through 

(cid:131) 

 Lengthy  signature  and 
ratification 
the 
Convention by all MS. 

of 

(cid:131)  Rules  of  the  Framework 
Decision on penalties and 
jurisdiction  would  not 
apply to the offences. 

(cid:131)  Some  EU  co-operation 
instruments  could  not  be 
used 
the  offences 
remain  outside  the  EU 
Legal Framework.  

if 

(cid:131)  The  EU  would  be  in  a 
weak  position  to  request 
the  co-operation  of  third 
countries 
private 
and 
sector 

(cid:131) 

Indirect  costs  for  internet 
service providers 

(cid:131)  Lack 

of 

control 

on 

national implementation. 

(cid:131)  ECJ not entitled to deliver 

preliminary rulings 

(cid:131)  EU 

counter-terrorist 
legislation  outdated 
in 
relation  to  the  UN  and 
CoE.  

(cid:131)  No  solution  for  the  lack 
and 
capacities 
law 
of 

of 
expertise 
enforcement authorities 

(cid:131)  Compulsory filtering does 
not  allow  for  prosecution 
of 
the 
the  authors  of 
relevant material. 

(cid:131)  Possibility  of  building  on 

(cid:131)  Compulsory filtering does 

EN 

58 

   EN 

 
 
 
 
 
to 

Internet  aiming  at  public 
commit 
provocation 
terrorist 
offences, 
recruitment  or  training  for 
terrorism.  

existing  experience  on 
child 
combating 
pornography 
in  certain 
Member States. 

not  allow  for  the  use  of 
EU instruments for police 
and  judicial  co-operation 
in criminal matters. 

(cid:131) 

Indirect 
right 
to 
integrity 

protection 
life  and 

of 
to 

(cid:131)  Filtering 

circumvented 
experienced 
users. 

can 

be 
by 
Internet 

(cid:131)  Costs  of  implementation 
service 
internet 

for 
providers. 

(cid:131)  Consumers  are  likely  to 
imposed  additional 

be 
charges. 

(cid:131)  Risk 

of 

costs 

for 
companies and consumers 
collateral 
in 
blocking. 

case  of 

(cid:131)  Compliance  with 

the 
ECHR  is  not  guaranteed 
in all cases. 

(cid:131)  The absence of legal basis 
which  forbids  or  makes 
public 
punishable 
provocation,  recruitment 
and  training  through  the 
Internet implies that these 
forms 
behaviour 
cannot  be  censored  nor 
prosecuted. 

of 

(cid:131)  Strong 

skills 

and 
expertise  would  then  be 
frustrated  at  the  moment 
of taking action. 

(cid:131)  All  drawbacks  of  option 

1. 

Option  3:  Enhancing 
enforcement 
capacities and expertise 

law 
authorities' 

(cid:131)  Addresses 
basic 
limitations 
of 
law 
authorities 
enforcement 
such  as  lack  of  technical 
or 
to 
counter the terrorist use of 
the  Internet  providing  for 
practical solutions. 

linguistic 

skills 

(cid:131)  Helps 

to 

understand 
terrorist  trends,  anticipate 
terrorist 
and 
prevent attacks.  

actions 

(cid:131)  Stimulates 

the 

co-
operation  and  sharing  of 
knowledge 
between 
Member  States  so  that 
they  can  benefit  from 
existing efficient methods 
in others. 

(cid:131)  Explores the development 
of  methodologies 
and 
tools  for  more  efficient 
detection  and  monitoring 
of violent radical contents 

EN 

59 

   EN 

 
 
 
(cid:131)  Explores the possibility of 
that 
involving  NGOs 
could 
law 
support 
enforcement  authorities, 
acting  as  complaint  hot-
lines. 

(cid:131)  Embodies  the  concept  of 
economy  of  scale  and 
prevents double working. 

(cid:131)  Complements  and  builds 
on  the  German  project 
"Check the web" 

(cid:131)  No adoption of EU or EC 

legislation required. 

(cid:131)  Respects 

freedom 

of 

expression 

protection 
life  and 

of 
to 

(cid:131) 

Indirect 
right 
to 
integrity 

See Option 1 

(cid:131)  Empowerment  of 

law 
enforcement authorities to 
face  new  modus  operandi 
including 
of 
offences 
committed 
through the Internet 

terrorists, 

(cid:131)  Rules  of  the  Framework 
Decision on penalties and 
jurisdiction  would  apply 
to the offences. 

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

of 
a 

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

(cid:131)  Application 

the 
European  Arrest  Warrant 
guaranteed. 

of 

(cid:131)  EU 

co-operation 
instruments  linked  to  the 
Framework 
Decision 
could be used  

(cid:131)  Full  compliance  with  the 

See Option 1 

(cid:131)  Successful 

co-operation 
with third countries is not 
guaranteed. 

(cid:131) 

Indirect  costs  for  internet 
service providers 

(cid:131)  No  solution  for  the  lack 
and 
capacities 
law 
of 

of 
expertise 
enforcement authorities 

of 

(cid:131)  Conformity 
of 
amendment 
the 
Framework Decision with 
the  Council  of  Europe 
the 
Convention 
prevention of terrorism at 
the 
the 
is 
negotiations  process 
not guaranteed. 

end 

of 

of 

EN 

60 

   EN 

 
long 
of 

as 
as 
ECHR, 
amendment 
the 
Framework Decision fully 
corresponds 
the 
to 
rights 
existing  human 
standards 

(cid:131)  Control 

on 

national 

implementation 

(cid:131)  ECJ  entitle 

to  deliver 

preliminary rulings 

(cid:131)  Consistency  between  the 
UN,  CoE 
and  EU 
counter-terrorist policies. 

(cid:131)  Strengthened  position  to 
seek  co-operation  from 
third 
and 
countries 
internet service providers 

(cid:131)  No 

need 

to 

amend 
legislation 
the 
to 

national 
already  adapted 
Convention 

6.3. 

Summary table: check list of benefits 

The  table  below  compares  the  policy  options  against  the  same  set  of  criteria,  which  detail 
relevant aspects of their impact on security, economy and human rights. It provides for a clear 
overview of the benefits of each policy option. 

Table of symbols  

The benefit is present 

The benefit is absent 

√ 

- 

Option 1 

Option 2 

Option 3  

Option 4  

Option 5 

policy 

No 
change 

Filtering 
obligations 

Practical 
support  to 
LEA 

Political 
statement 

Revision FD

Security impact 

EN 

61 

   EN 

 
 
 
basis 

Legal 
investigation 
prosecution  

√88 

for 
and 

- 

- 

- 

- 

- 

- 

- 

- 

- 

Increase  expertise  and 
capabilities  of 
law 
enforcement 
authorities  

Access 
radical 
to 
violent  content  on  the 
hindered 
Internet 
directly 

Application of rules on 
penalties 
and 
jurisdiction of the FD  

Automatic  application 
of EAW and other EU 
instruments 

No  need  for  lengthy 
signature 
and 
ratification process  

Control  on  national 
implementation 

ECJ  interpretation  via 
preliminary rulings 

Consistency  between 
the  UN,  CoE  and  EU 
counter-terrorist 
policies 

Strengthened  position 
to  seek  co-operation 
third  countries 
from 
and 
internet  service 
providers 

Economic impact 

No  substantial  costs 
for private sector 

√ 

- 

- 

√ 

- 

- 

√ 

- 

- 

- 

- 

- 

- 

√ 

- 

- 

- 

√ 

- 

- 

- 

- 

√ 

- 

- 

- 

- 

- 

- 

- 

- 

- 

√ 

- 

- 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

88 

Once all Member States have signed and ratified the Council of Europe Convention on the prevention 
of terrorism. 

EN 

62 

   EN 

 
                                                 
No  substantial  costs 
for national authorities 

√ 

Human rights impact 

Compliance 
freedom of speech 

with 

Protection  of  fight  to 
life and to integrity 

√ 

√ 

√ 

- 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

EN 

63 

   EN 

 
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. 

Options 

(*The extent of the changes depends on the existence of comparable offences in the MS's 
legal systems) 

Ratification of 
Council of Europe 
Convention on 
Terrorism (options 1 
and 4) 

Same  effect  if  ratification  in 
all  MS  and  modification  of 
Framework Decision

Modification of 
FD on terrorism 
(option 5) 

Consequences for treatment of new 
offences by EU legal order  

Applicability  of  Data 
Directive ("retrieval of data")* 

retention 

Applicability 
Directive ("shut down sites")* 

of 

E-Commerce 

Introduction  of  minimum  penalties 
(allowing use of EAW)   warrant) 

Introduction  of  rules  on  positive 
conflicts of jurisdiction 

Applicability  of  Council  Decision 
on  exchange  of  information  and 
terrorist 
cooperation  concerning 
offences (2005/671/JHA) 

EN 

64 

Framework 
of 
Applicability 
Decision  on  confiscation  of  crime 
related proceeds (2005/212/JHA)

EN 

 
  
 
 
 
 
6.5. 

Strengths and weaknesses of each policy option and preferred option 

Option 1, no policy change, is not a true status-quo, since the Convention on the prevention of 
terrorism will bring about some positive impact on security, helping to tackle the issue of the 
use  of  the  Internet  for  terrorist  purposes.  This  option  implies  the  empowerment  of  law 
enforcement to fight new modus operandi of terrorists, including offences committed through 
the Internet while fully respecting human rights and implies that there is no need for further 
regulation at EU level. However, full harmonisation will only be achieved once all Member 
States sign and ratify the Convention, which can last for many years. 

Option  2,  forbidding  internet  service  providers  to  give  access  to  material  to  block  the 
dissemination  of  messages  through  the  Internet  aiming  at  public  provocation  to  commit 
terrorist offences, recruitment or training for, i.e. compulsory filtering of terrorist propaganda 
and  terrorist  expertise  content  is  the  most  extreme  of  the  options  examined.  It  presents  the 
advantage  of  restricting  directly  the  dissemination  of  the  relevant  materials  through  the 
Internet. However, it involves serious disadvantages, most importantly, it does not incriminate 
the  behaviour  of  those  producing  terrorist  propaganda  and  expertise  nor  does  it  fully 
guarantee compliance with human rights standards. 

Option  3,  enhancing  law  enforcement  authorities'  capacities  and  expertise,  provides  for 
practical  solutions  to  overcome  limitations  of  law  enforcement  authorities  to  detect  and 
analyse  the  messages  disseminating  terrorist  propaganda  and  terrorist  expertise  thought  the 
Internet. It also helps them to identify the authors of such messages. The information obtained 
in  this  manner  contributes  to  understand  terrorist  trends,  anticipate  terrorist  actions  and 
prevent  attacks.  However,  it  does  not  allow  law  enforcement  authorities  to  investigate  the 
dissemination of terrorist propaganda and terrorism expertise nor does it allow the prosecution 
of  the  terrorist  activists  and  supporters  behind  it,  since  no  legislation  is  adopted.  In 
consequence, option 3 leads to a partial empowerment of law enforcement authorities, lacking 
the legal side.  

Option 4, making a political statement urging Member States to ratify the Convention on the 
prevention of terrorism, does not present substantial differences from option 1.  

Option  5,  revising  the  Framework  Decision  on  combating  terrorism  in  order  to  introduce 
parallel  offences  to  those  foreseen  under  the  Council  of  Europe  Convention  is  the  most 
advantageous option. This policy option is similar to option 1 as regards its impact on human 
rights, because it includes conditions and safeguards of the Council of Europe Convention on 
the proevention of terrorism, aiming to ensure the protection of human rights and fundamental 
freedoms. However, it implies important advantages such as the application of the rules of the 
Framework  Decision  on  penalties  and  jurisdiction  to  the  new  offences  introduced  in  the 
Framework Decision on combating terrorism. Additionally, it would guarantee the application 
of the European Arrest Warrant and allow for the use of specific EU co-operation instruments 
linked to the Framework Decision on combating terrorism in relation with the new offences. 
Furthermore,  it  brings  about  all  advantages  of  EU  legislation  vis-à-vis  international 
conventions and treaties. 

Based on this analysis, it appears that the combination of options 5 and 3 would constitute the 
most effective policy to counter the new modus operandi of terrorist, in particular their use of 
the  Internet  as  a  means  for  public  provocation  to  commit  terrorist  crimes,  recruitment  and 
training for terrorism, while fully respecting human rights.  

EN 

65 

   EN 

 
Choosing  option  5  does  however  not  exclude  option  4.  The  benefits  of  international 
instruments  in  the  fight  against  the  terrorist  use  of  the  Internet  are  beyond  doubt  and  the 
importance  of  the  Convention  on  the  prevention  of  terrorism  in  this  specific  case  is  by  no 
means  underestimated  or  contested.  The  adoption  of  additional  legislation  along  the  same 
lines as those contained in the Convention intends to exploit all EU co-operation channels and 
instruments  in  order  to  fight  the  provocation  to  commit  terrorist  offences,  recruitment  and 
training for terrorism more efficiently, including their commission through the Internet. The 
revision  of  the  Framework  Decision  on  combating  terrorism  would  therefore  build  on  the 
Convention  and  boost  its  effects.  A  revised  Framework  Decision  would  also  benefit  from  a 
widely ratified Convention operating at international level in a much broader forum than the 
EU and improving the chances of co-operation with third countries.  

Option 3 appears to be the perfect complement to option 5. Law enforcement authorities do 
not  only  need  the  legal  basis  to  counter  the  use  of  the  Internet  as  a  means  to  disseminate 
terrorist propaganda and terrorist expertise but also require the technical and linguistic skills 
as well as appropriate tools and methodology. Only with the appropriate training, the support 
of experts and efficiently equipped, will law enforcement authorities be able to make use of 
the new legislation. Similarly to option 5, option 3 as a stand- alone option would not provide 
for a complete solution to the problem. It would provide law enforcement with the expertise 
and  capacity  to  detect,  monitor  and  analyse  the  dissemination  of  terrorist  propaganda  and 
terrorist  expertise  as  well  as  to  trace  the  terrorist  activists  and  supporters.  However,  law 
enforcement  authorities  could  not  open  an  investigation  or  prosecute  such  individuals. 
Accompanied  by  the  legal  measures  foreseen  under  option  5,  the  capacities  and  expertise 
offered  to  law  enforcement  authorities  under  option  3  would  be  fully  exploited.  Only  with 
adequate new legislation law enforcement authorities would be able to make full use of their 
additional capacities and resources. 

7. 

SECTION 7: MONITORING AND EVALUATION 

7.1.  Monitoring of legislative measures (option 5) 

Under Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism 
(hereafter  ‘the  Framework  Decision  on  combating  terrorism’),  the  Commission  has  to 
establish  a  written  report  on  the  measures  taken  by  the  Member  States  to  comply  with  this 
instrument. 

In accordance with that Article, a report from the Commission as well as a Commission staff 
working paper associated with this report were adopted on 8 June 2004. A second report from 
the  Commission  also  accompanied  by  a  Commission  staff  working  paper  is  currently  under 
inter-service consultation and should been soon approved.  

To be able to evaluate on the basis of objective criteria whether a  Framework Decision has 
been  fully  implemented  by  a  Member  State,  the  two  precedent  written  reports  have  applied 
some general criteria developed with respect to directives, such as: 

1. 

89 

EN 

form and methods of implementation must be chosen in a manner which ensures that 
the directive functions effectively with account being taken of its aims89; 

See relevant case law on the implementation of directives: Case 48/75 Royer [1976 ECR 497 at 518]. 

66 

   EN 

 
                                                 
2. 

3. 

each Member State is obliged to implement directives in a manner which satisfies the 
requirements of clarity and legal certainty and thus to transpose the provisions of the 
directive into national provisions having binding force90, 

transposition need not necessarily require enactment in precisely the same words in 
an express legal provision; thus a general legal context (such as appropriate already 
existing measures) may be sufficient, as long as the full application of the directive is 
assured in a sufficiently clear and precise manner91; 

4. 

a Directive must be implemented within the period prescribed therein92. 

If the Framework Decision on combating terrorism is revised, the evaluation system referred 
to above would also apply to the new provisions introduced.  

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

Article  13  of  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  deals  with  monitoring.  It  ensures  the 
monitoring  of  each  of  the  actions  financed  by  the  programme.  To  this  end,  among  other 
requirements,  it  obliges  the  beneficiary  to  submit  technical  and  financial  reports  on  the 
progress of work as well as a final report within three months of the completion of the action. 
In  addition,  it  foresees  the  supervision  and  financial  control  of  contracts  and  agreements 
resulting  from  the  implementation  of  the  Programme  by  the  Commission,  if  necessary  by 
means of on-the-spot checks, including sample checks, and audits by the Court of Auditors. 

Article  15  of  the  same  instrument  refers  to  evaluation  ensuring  that  the  Programme  is 
monitored regularly in order to follow the implementation of activities carried out there under. 
To this end, this provision foresees independent and external evaluation of the Programme as 
well as the submission, to the European Parliament and the Council, of an annual presentation 
on the implementation of the Programme; an interim evaluation report on the results obtained 
and the qualitative and quantitative aspects of the implementation of the Programme no later 
than 31 March 2010; a communication on the continuation of the Programme no later than 31 
December 2010, and finally, an ex-post evaluation report no later than 31 March 2015. 

Since the non-legislative measures envisaged in option 3 would be financed in the framework 
of this Specific Programme Prevention of and Fight against crime, Articles 13 and 15 would 
apply to these measures. 

90 

91 

92 

See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium [1986] 
ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456. 
See  relevant  case  law  on  the  implementation  of  directives  for  instance  Case  29/84  Commission  v. 
Germany [1985] ECR 1661 at 1673. 
See substantial case law on the implementation of directives, for example : Case 52/75 Commission v. 
Italy  [1976]  ECR  277  at  284,  See,  generally,  the  Commission  annual  reports  on  monitoring  the 
application of Community law, for instance COM(2001) 309. 

EN 

67 

   EN 

 
                                                 
ANNEXES 

ANNEX I: REPLIES TO THE FIRST QUESTIONNAIRE ADDRESSED TO MEMBER STATES 

1)  Besides  the  necessary  transposing  provisions  making  incitement  to  commit  terrorist 
offences  punishable,  does  your  country  have  (or  plan  to  have)  more  detailed/further 
reaching provisions setting out restrictions or sanctions in relation to public provocation 
to commit terrorist offences, terrorist apology or glorification of terrorist offences or their 
authors? 

And does your country have (or plan to have) more detailed/further reaching provisions 
in relation to the transmission of expertise on bomb or explosives-making, preparation of 
attacks, hostage-taking or other instructions for committing a terrorist offence? 

Two  Member  States  did  not  provide  for  any  provision  or  answered  very  briefly  because  of 
their undergoing legislative modification in view of the ratification of the Convention on the 
Prevention of Terrorism of the Council of Europe.  

The rest of the Member States referred to different criminal law provisions in their answers. 

A first overview shows that every Member State but one have got or will have specific rules 
dealing  with  public  dissemination  of  messages  encouraging  the  commission  of  terrorist 
offences  (and  often  of  other  crimes).  Although  terminology  is  not  at  all  uniform  (i.e. 
"provocation",  "instigation",  "public  incitement"  etc.)  we  observe  that  there  is  a  reiterative 
characteristic: they explicitly refer to publicly disseminated information. Often, the provision 
makes reference to dissemination in a meeting, via publication or sound and images supports. 
Some provisions deal specifically with "terrorist publications", including even a reference to 
the dissemination via the Internet. In other cases, the comments of the Member States explain 
that  messages  on  the  internet  are  included.  Two  Member  States  express  theoretically  this 
characteristic  by  saying  that  the  recipient  does  not  have  to  be  previously  determined. 
Actually,  these  two  Member  States  stress  that,  by  contrast  with  the  general  rules  on 
incitement, in the relevant provisions the offence does not need to be determined beforehand 
either.  In  this  sense,  some  Member  States  retain  direct  and  indirect  provocation.  In  five 
Member States, these provisions refer to the irrelevance of the subsequent commission of the 
offence or the actual incitement of the recipients of the message. 

Additionally,  eight  Member  States  have  got  or  will  have  provisions  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. 

Three Member States referred to provisions explicitly covering the public dissemination of 
terrorist  expertise.  Six  Member  States  have  got  or  will  have  provisions  on  training  or 
recruiting, mainly resulting from its adaptation to the Council of Europe Convention on the 
Prevention  of  Terrorism.  One  Member  State  points  out  its  provision  on  preparation  of  a 
crime,  explaining  that  it  comprises  holding  something  especially  intended  to  be  used  as  an 
auxiliary means and that compiled information can be regarded as the said auxiliary means. 
Furthermore,  it  clarifies  that  the  intent  does  not  have  to  cover  a  specific  terrorist  offence. 

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Another Member State refers to its general rules on complicity. Three Member States explain 
that the transmission of expertise would be criminalised under its penal code only if was done 
intentionally and the terrorist act was actually committed or attempted/planned. Two Member 
State link the dissemination of terrorist expertise to terrorist groups, making punishable the 
transmission information on terrorist targets. One Member State points out it has no specific 
provision concerning the transmission of terrorism expertise. 

Six  Member  States  mentioned  provisions  that  are  not  part  of  their  criminal  law  in  their 
answers.  Only  one  referred  to  aliens  and  associations  law.  The  rest  mentioned  their  media 
law  as  well  as  provisions  on  electronic  communications  or  only  the  latter.  Various 
highlighted that the dissemination of terrorist propaganda or terrorist expertise should be in 
principle  fall  within  the  scope  of  penal  law  or  that  media  acts  had  not  specific  provisions 
concerning  the  said  issues.  The  provisions  forwarded  prohibit  incitement  to  hatred, 
endangering public order, security or important domestic interests and incitement to commit 
terrorist offences in the case of one Member State. It should be noted that such prohibitions, 
save  in  one  case,  go  beyond  the  encouragement  to  the  commission  of  a  specific  offence  or 
approval of its commission. Indeed, they provide for wider prohibitions such as incitement to 
hatred  or  call  for  violence.  Two  Member  States  explicitly  refer  to  their  broader  scope, 
indicating either that the threshold of incitement does not have to be trespassed or that cover 
behaviours that do not constitute a criminal offence. 

Regarding  their  regulations  on  electronic  communications,  one  Member  State  requires 
Internet Service Providers  to be licensed, one  Member State obliges  them to  delete  illegal 
contents, while one Member State stresses that they are not liable and another one notes that 
they are not subject to a general obligation to monitor. 

If so;  

i) We would be extremely grateful if you could specify whether these provisions would 
constitute:  

a) Criminal legislation  

b) Media legislation  

c) Other. Please, specify the branch of law in this case. 

Please, tick the appropriate choice(s) and kindly give further details about the relevant 
legal instruments. 

All  Member  States  referred  to  criminal  law.  Additionally,  six  of  them  referred  to  non 
criminal law: one referred to aliens and associations law. The rest mentioned their media law 
as well as provisions on electronic communications. 

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ii)  We  would  very  much  appreciate  if  you  could  indicate  what  problems  have  been 
encountered in implementing these provisions:  

a) Problems in interpreting the criminal law provisions in question in full respect 
of the fundamental right of freedom of expression. We would be particularly grateful if 
you could provide us with legal opinions or national jurisprudence as to how the issue 
has been dealt with in your countries. 

b)  Resistance  for  commercial  reasons  from  media,  service  providers  or 
publishers. 

c)  Law-enforcement  difficulties  linked  to  the  nature  of  the  internet  such  as 
identifying the source of the illegal content or eliminating this illegal content. 

c) Others. Please kindly provide further details in this case. 

Please, tick the appropriate choice(s). 

Some Member States declare not having had any problems concerning the implementation of 
the relevant provisions although some clarify that the rules are very recent and others explain 
that no cases of the relevant offences have occurred in their territory (Lithuania). 

Six Member States pointed out problems of enforceability derived from the extra-territorial 
nature of internet and, in particular, the fact that illegal contents are often hosted in third 
countries. Some of them referred to cases where there is no international convention with the 
third  country,  in  particular,  convention  of  legal  assistance.  One  Member  State  refers  to  the 
lack  of  harmonisation  of  illegal  contents  and  data  retention  rules  at  an  international  level. 
There  is  also  a  specific  mention  of  the  United  States  and  the  first  amendment  to  its 
constitution, which limits substantially the intervention of the authorities. One Member State 
describes  the  problem  of  determining  the  location,  for  which  tracing  the  IP  is  required,  as 
well as competent jurisdiction.  

Two  Member  States  refer  to  the  contra-strategies  used  by  terrorists:  encryption,  which 
complicates  the  task  of  policemen,  especially  regarding  the  respect  of  investigation 
procedures  in  a  democratic  society;  new  technologies  such  as  Skype  or  WI-FI;  measures 
complicating the identification of the authors such as proxy servers, anonymizers or pre-paid 
SIM cards; the enormous number of connections in little time; the minor providers and their 
limited capacities, their cache memory being often switched off.  

One  Member  State  mentions  the  high  price  of  blocking  techniques  since  minor  service 
providers would be unable to apply them. 

Two Member States stress the need to cooperate with internet service providers to access the 
information required to identify the authors of the messages while one of them refers to the 
lack of will from the side of webmasters of "risky" websites to cooperate with law enforcement 
authorities. 

Technical problems regarding monitoring the transmission of data among computers are as 
well mentioned by one Member State, which also refers to the problem of lengthy procedures. 

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One Member State refers to the problems of interpretation of the relevant provisions in full 
respect of the fundamental right of freedom of expression. 

your 

country 

2)  Does 
administrative 
out 
monitoring/suppression/restriction  on  public  provocation  to  commit  terrorist  offences, 
terrorist  apology  or  glorification  of  terrorist  offences  or  their  authors  (e.g.  blocking  of 
websites, confiscation of materials, censorship etc)? 

informal 

carry 

any 

or 

does 

your 

country 

administrative 
out 
And 
monitoring/suppression/restriction  on  the  transmission  of  expertise  on  bomb  or  explosive-
making, preparation of attacks, hostage-taking or other instructions for committing a terrorist 
offence? 

informal 

carry 

such 

or 

If so, 

i) It would be extremely useful if you could give details including which are the enforcement 
(law  enforcement  authorities,  other  public  administration  bodies,  private 
bodies 
bodies/independent authorities representing media, service providers or publishers etc), their 
method of operation and the perceived benefits. 

Eight Member States refer to systematic monitoring of the Internet or systematic collection 
of information for terrorism prevention pointing out in most of the cases that the authorities 
in  charge  are  police  authorities  or  intelligence  services.  Three  Member  States  mention  the 
authorities  responsible  for  mass-media  such  as  radio  or  TV,  for  contents  disseminated 
through  those  media.  One  Member  State  refers  to  an  inspectorate  responsible  for  the 
activities of electronic media within the Ministry of Economy. Eight Member States explain 
that  police  authorities  act  on  a  case  by  case  basis  further  to  judicial  orders  or  under 
supervision  of  the  competent  attorney.  One  Member  State  states  it  does  not  carry  out  any 
measures as those referred to in the question. 

 ii)  We  would  very  much  appreciate  if  you  could  indicate  what  problems  have  been 
encountered in carrying out this system: 

a) Problems in interpreting the criminal law provisions in question in full respect 
of the fundamental right of freedom of expression. We would be particularly grateful if 
you could provide us with legal opinions or national jurisprudence as to how the issue 
has been dealt with in your countries. 

b)  Resistance  for  commercial  reasons  from  media,  service  providers  or 
publishers. 

c)  Law-enforcement  difficulties  linked  to  the  nature  of  the  internet  such  as 
identifying the source or eliminating the illegal content. 

d) Others. Please, kindly provide further details in this case. 

Only one Member State answered, indicating the different process to close-down a site with 
illegal  content  depending  on  its  location:  national  territory,  UE  Member  State  or  third 
country.  In  last  case,  everything  would  depend  on  a  principal  problem  the  problem  of  sites 

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hosted in a third country, as the success would depend on the cooperation agreements with 
the country in question. 

Some Member States, however, had already answered this question in their replies to question 
1(ii) which is indeed closely connected. 

3) Does your country maintain data or studies on public provocation to commit terrorist 
offences,  terrorist  apology  or  glorification  of  terrorist  offences  or  their  authors  that  it 
would be willing to make available for the elaboration of the proposal for a modification 
of  the  Framework  Decision  of  13  June  2001  on  combating  terrorism  or  for  the 
development  of  further  EU  legislation  in  this  area?  The  Commission  will  respect  any 
security restrictions specified on the publication and dissemination of such information. 

And does your country maintain such data or studies on the transmission of expertise on 
bomb or explosives-making, preparation of attacks, hostage-taking or other instructions 
for the commission of a terrorist offence? 

Most Member States stated that they do not have specific or separated data or studies on the 
transmission of terrorist propaganda as well as bomb-making and other terrorist expertise. 
Yet,  one  Member  State  explained  that  Service  of  Postal  and  Communication  Police  stores 
data  and 
investigation  and  monitoring  of 
the  results  of 
communication systems and services on the relevant subjects. Another Member State referred 
to  its  action  plan  against  radicalisation  including  a  contact  point  "Internet".  Finally,  one 
Member State pointed out a data base specifically on terrorist offences that would be willing 
to make available. 

information  concerning 

4)  Considering  the  unique  position  of  the  EU  to  help  tackle  what  is  often  a  cross-border 
issue,  with  protagonists  in  different  countries,  and  information  flowing  freely  between 
different  jurisdictions,  does  your  country consider  there  is  a  need  for  more  detailed/further 
reaching legislation dealing with both terrorist propaganda and the transmission of bomb or 
explosives-making expertise ? 

The answers given by Member States have been compiled in the tables below. 

to 
Need 
revise 
the 
Framework 
Decision 

No 
answer/open 

answer  

No 

Yes 

only 

Yes 
regarding 
terrorist 
propaganda 

Yes  only  regarding 
bomb-making 
and 
other 
terrorist 
expertise 

Member 
States 

3  

7 

5 

1 

2 

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If so; 

i)  It  would  be  extremely  useful  if  you  could  indicate  which  of  these  options  you  think  is 
preferable: 

a)  Limit  the  scope  of  this  legislation  to  the  circulation  of  terrorist  propaganda  and 
transmission  of  expertise  on  bomb  or  explosives-making,  preparation  of  attacks,  hostage-
taking  or  other  instructions  for  the  commission  of  a  terrorist  offence  through  the  internet 
since the use of this channel for terrorist purposes is undoubtedly much higher than that of 
any other media and very often, there is not appropriate legislation covering the internet. 

b)  Extend  the  scope  of  the  legislation  to  the  circulation  of  terrorist  propaganda  and 
transmission  of  expertise  on  bomb  or  explosives-making,  preparation  of  attacks,  hostage-
taking  or  other  instructions  for  the  commission  of  a  terrorist  offence  through  all  media, 
including the press and broadcasters, assuming that the study of Member State's legislation 
on the latter makes us conclude that there is a need to modernise these rules in order to adapt 
them to present day forms of terrorism.  

options 

None 
of 
options/open answer 

the 

given 

a 

Member  

9 

3 

States 

b 

6 

ii) We would be extremely grateful if you could tell us whether your country considers that the 
Framework  Decision  of  13  June  2001  on  combating  terrorism  should  be  modified  so  that 
public  provocation  to  commit  terrorist  offences,  terrorist  apology  or  glorification  of  terrorist 
offences or their authors are punishable in all Member States.  

If so, please kindly indicate which of the following options is preferable in your view: 

a) Make punishable the public provocation directly advocating a specific terrorist offence. 

b)  Make  punishable  the  public  provocation  to  commit  terrorist  offences  in  line  with  the 
Convention  on  the  prevention  of  terrorism  of  the  Council  of  Europe  (directly  or  indirectly 
advocating terrorist offences with the risk that one or more offences can be committed). 

c) Make punishable the apology/glorification of terrorism. 

Options 

of 

None 
given 
options/open 

the 

a 

b 

c 

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answer 

Member States 

13 

2 

3 

iii) It would be extremely useful if you could indicate whether your country considers 
that  the  Framework  Decision  of  13  June  2001  on  combating  terrorism  should  be 
modified so that transmission of expertise on bomb or explosives-making preparation of 
attacks, hostage-taking or other instructions for the commission of a terrorist offence is 
punishable in all Member States. 

If so, please kindly specify which options would be preferable in your view: 

a) Make punishable all transmission of such expertise.  

b) Make punishable only the transmissions made with terrorist intent. 

c) Impose criminal liability only on the transferor. 

d) Impose criminal liability only on the transferee. 

d) Impose criminal liability on both of the parties involved. 

Options 

None  of  the 
options 
given/open 
answer 

Member States 

13 

a 

4 

b 

c 

e 

d 

1 

ii)  Does  your  country  consider  that  it  would  be  preferable  to  address  the  issue  of  terrorist 
propaganda  by  using  first  pillar  legislation  so  that  public  provocation  to  commit  terrorist 
offences, terrorist apology or glorification of terrorist offences or their authors would not be 
punishable  under  criminal  law  but  restricted  or  sanctioned  under  internal  market  and/or 
media legislation?  

And does your country consider the use of such legislation preferable to address the issue of 
transmission of bomb or explosives-making expertise through the media? 

The vast majority of Member States agree that it would be preferable to address the subject 
through legislation under the third pillar.  

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5) Apart from the possibility of more detailed/further reaching legislation to address the 
issues of terrorist propaganda and transmission of bomb or explosive-making expertise, 
would your country like to see the EU, with Europol in the operational sphere, play a 
greater  role  in  coordinating  the  efforts  of  the  Member  States  in  order  to  develop  joint 
monitoring of the internet, co-ordinated notification of and closure of websites, unified 
negotiating position in relation to internet service providers or any other initiative in this 
area? If so, could you please specify which role?  

All  Member  States  stress  the  importance  of  coordinating  the  efforts  of  Member  States  in 
fighting the use of the Internet with terrorist purposes. Eight Member States refer to the co-
operation with Europol, two of them also mention Eurojust and one of them Sit-Cen. Several 
express their support to the Germany's Check the Web proposal. 

One  Member  State  highlights  the  role  of  the  EU  might  have  in  co-operating  with  Internet 
Service Providers and negotiate with third countries, in particular with the USA, where most 
of the Internet sites are hosted. It also points out the need to reflect, at an international level, 
on the sensitive material often exposed on Internet sites by administration and particulars as 
well as on the exchange and sale of e-bay. 

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ANNEX  II:  REPLIES  TO  THE  SECOND  QUESTIONNAIRE  ADDRESSED  TO  CIVIL  SOCIETY, 

INDUSTRY AND MEDIA 

As a preliminary remark, it should be noted that eight of the answers have not followed the 
questionnaire but have given a general reply expressing their main concerns or raising their 
interests. 

In this sense, the following recurrent points should be highlighted:  

Regarding Media Associations 

•  Concern  for  the  respect  of  human  rights  and,  in  particular,  freedom  of 
speech:  by  attempting  to  increase  security,  the  EU  can  undermine  civil  liberties 
and  damage  the  basic  role  of  the  media  in  democratic  societies.  Fearful  of 
terrorism, the EU might adopt measures leading to censorship or simple ignorance 
of the facts on the ground. 

•  Need to return to defence of human rights, reinforce freedom of speech and 
strengthen  quality  and  ethical  journalism.  The  weapons  against  terrorism  are 
reason, information, debate and wisdom. To achieve this objective, we need free 
and responsible media.  

•  The EU should strictly respect the editorial independency of the media. There 
should  not  be  government  control  on  editorial  content.  State-led  measures 
disguised as self-regulation will not be supported. 

•  The  EU  should  not  introduce  any  new  measures  on  freedom  of  expression 
and information in the media unless strictly necessary and proportionate in a 
democratic  society.  It  should  check  carefully  whether  existing  regulation  or 
measures  are  not  enough.  In  particular,  the  EU  should  refrain  from  adopting 
measures equating media reporting on terrorism with support for terrorism. 
Too  widely  formulated  provisions  on  incitement  might  end  up  applying  to 
journalists and media. Special concern causes in this sense the criminalisation of 
glorification of terrorism. 

•  No need to define "incitement" at EU level. The Framework Decision should be 
confined  to  setting  the  goals  and  leave  specific  measures  and  means  to  the 
Member States. 

•  Need to enhance human and technical means available for the detection and 
elimination  of  that  kind  of  threat  while  respecting  Rule  of  Law  and  the 
Human Rights. 

Regarding Associations of internet service providers and telecommunications operators 

•  According  to  the  e-commerce  Directive,  Internet  Service  Providers  do  not 
disseminate  information  but  are  mere  conduits,  not  liable  for  information 
transmitted over the services they provide. Similarly, under the same instrument, 
they are not liable for the information they host unless they have actual knowledge 
of illegal material and fail to take steps to remove it. 

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•  A  concern  regarding  the  eventual  intention  of  the  EU  to  use  blocking 

techniques to tackle terrorist contents. 

•  The  decision  regarding  the  legality  of  contents  disseminated  through  the 

Internet should not be left to Internet Service Providers. 

•  Offer for further dialogue and co-operation to develop feasible, appropriate 
and  effective  tools  to  fight  terrorist  contents  on  the  Internet.  Possibilities  of 
public-private  partnership  would  include  further  training  and  support  for  law 
enforcement  by  Internet  Service  Providers  and  development  of  technology 
directly assisting law enforcement authorities in their work. 

Technical points 

•  The Convention on the Prevention of Terrorism of the Council of Europe builds 
on  the  case-law  of  the  European  Court  of  Human  Rights  and  contains  several 
clauses of safeguard of freedom of expression, i.e. Articles 12 and 21, ensuring its 
full compliance with human rights. 

•  Incitement to terrorism should be a criminal offence only where there is a criminal 
intention and the speech concerned causes the commission of a terrorist act or the 
imminent risk of such a commission.  

Concerning the detailed answers, they have been compiled below: 

1.  How would you assess the effectiveness of Article 4 of the Framework Decision on 
Combating Terrorism, and of its implementation in Member States, against inciting, 
aiding or abetting a terrorist offence as defined by the Framework Decision itself?  

One answer notes that effectiveness must be seen as preventing terrorist activity or preventing 
dangerous  dissemination  of  terrorist  materials,  yet  respecting  the  freedom  of  speech  of 
individuals and the media to be able to report on the events. 

Other reply points out its complexity and danger as verbalising ideas might become a crime.  

Another  one  stresses  that  the  scope  should  not  be  extended  to  include  conducts  such  as 
apology, encouragement, justification or glorification of terrorism. Broadly worded offences 
may have a chilling effect in inhibiting a constructive debate. 

2.  Could you provide any information or examples that in your view demonstrate how 
Article  4  fails  to  cover  certain  terrorist  offences  or,  on  the  contrary,  information  or 
examples  demonstrating  how  this  provision  applies  to  cases  which  should  not  be 
considered as a terrorist offence? 

According to one of the answers, the main point is not how to legislate, but how to apply the 
law. It refers to the example of a Portuguese court which failed to prevent a terrorist threat, 
releasing a terrorist suspect, who was only condemned to leave the country. 

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Another reply shows its concern about the description of the intentional element of a terrorist 
offence under Article 1 of the Framework Decision "unduly compelling a Government or an 
international  organization  to  perform  or  abstain  from  performing  any  act"  since  "any  act" 
might  cover  an  act  of  publishing.  Nevertheless,  it  notes  that  there  have  not  been  specific 
problems up-to-date. 

Otherwise,  it  is  noted  that  too  wide  competences  of  criminal  investigation  may  hinder 
journalists in their profession. 

3.  What  are  your  views  with  regard  to  the  fact  that  there  is  no  legal  definition  of 

incitement in the Framework Decision? 

The lack of definition of incitement in the Framework Decision is generally not regarded as 
problematic. Different reasons are given: the Framework Decision does not apply directly but 
must be implemented by Member States so that national law can provide for legal certainty; a 
case-by-case system, sufficiently open for the judge is considered preferable to too exhaustive 
provisions, or there is no need for a uniform definition of incitement, generally understood as 
public instigation. 

One  answer  explains  that  properly  defined  and  applied,  offences  of  incitement  to  acts  of 
terrorism are sufficient to criminalise indirect incitement, without resort to broader offences 
of  apology,  glorification,  justification  or  encouragement  of  terrorism.  It  adds  that  if 
“incitement” in Article 4 were to be broadly defined to include glorification, justification or 
encouragement of terrorism then this, combined with the wide definition of terrorism and the 
range of terrorism offences to which it would apply, would make the scope of the prohibition 
under  the  Framework  Decision  highly  indeterminate,  in  breach  of  the  principle  of  legality, 
and  would  risk  disproportionate  or  discriminatory  interference  with  rights  to  freedom  of 
expression. In order to safeguard against such over-broad definitions at a national level, an 
express  clarification  that  incitement  under  Article  4  should  be  limited  on  the  basis  of  the 
Johannesburg Principles would be beneficial. 

4.  a) What are your views with regard to Article 5 of the recently adopted Council 
of Europe Convention on the Prevention of Terrorism (2005) in which the public 
provocation  to  commit  a  terrorist  offence  is  defined  as:  "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"? 

b)  Please,  if  possible,  complement  your  answer  by  assessing  the  impact  that  the 
implementation  of  such  a  provision  might  have  on  you  as  an  industry,  association, 
organization  or  body  concerned,  or  the  impact  that  it  might  have  on  civil  society  in 
general. 

Two  replies  noted  that  the  Convention  on  the  Prevention  of  Terrorism  of  the  Council  of 
Europe  was  elaborated  bearing  in  mind  the  relevant  case-law  of  the  European  Court  of 
Human  Rights  and  after  conducting  a  survey  of  relevant  national  law  and  practice  on 
incitement.  Furthermore,  it  contains  several  clauses  of  safeguard  of  freedom  of  expression, 
i.e. Articles 12 and 21, ensuring its full compliance with human rights. 

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One  of  the  replies  points  out  that,  in  order  to  effectively  protect  freedom  of  expression,  the 
Article 5 requirement that conduct should cause a “danger” of a terrorist offence should be 
interpreted  as  requiring  a  real  and  imminent  risk  of  such  an  offence  in  the  particular 
circumstances of the case, rather than a mere abstract danger.  

One answer fears misinterpretations of the provision having a negative effect on the media. 
Another answer goes further, considering that a provision that criminalises the behaviour of 
transmitting  a  "terrorist"  message  on  the  sole  basis  that  it  causes  a  danger  jeopardises 
freedom of information. This reply also insists on the role of media to disseminate knowledge 
on terrorist deeds so that a critical debate on terrorism can take place.  

One  reply  notes  that  the  resource  to  propaganda  has  shown  as  one  of  the  most  efficient 
weapons of terrorist groups as Al-Qaeda, that must be fought by all the means. This task of 
prevention implies the existence of permanent teams on the Net, which can interact in the sites 
of propaganda, identifying authors and places of diffusion. 

5.  a)  What  are  your  views  with  regard  to  the  analysis  made  in  the  Explanatory 
Report  to  the  above  mentioned  Council  of  Europe  Convention  that  the  above-
quoted provision would cover: 

-  dissemination of messages praising the perpetrator of an attack 

-  denigration of victims 

-  calls for funding terrorist organisations  

-  other similar behaviour 

b)  Please,  if  possible,  complement  your  answer  by  assessing  the  impact  that  the 
implementation of a provision explicitly forbidding the dissemination of one or more of 
the  abovementioned  messages  might  have  on  you  as  an  industry,  association, 
organization,  or  body  concerned,  or  the  impact  that  it  might  have  on  civil  society  in 
general. 

One of the replies notes that such acts are committed with intent to incite acts of terrorism, 
and where they lead directly to an act of terrorism or the imminent risk of such an act, they 
can  legitimately  be  criminalised.  Conversely,  however,  where  such  acts  are  not  committed 
with the requisite intent, and do not lead to an act of terrorism or the immanent risk of such 
an  act,  their  criminalisation  would  not  serve  a  pressing  social  need  and  would  risk  non-
compliance with Article 10 ECHR. 

One  reply  opposes  to  such  interpretation  and  wonders  who  is  held  responsible  if  someone 
posts  a  message  on  the  website  of  a  media  company.  It  also  notes  that  "other  similar 
behaviour" it too a wide expression. 

A  last  reply  indicates  that  "denigration  of  victims"  and  "calls  for  funding  terrorist 
organisations" are punishable in Germany. It adds that "messages praising the perpetrator of 
an attack" should not be punished if disseminated in the context of an objective, critical report 
whose sole basis is to meet the public's request for information. 

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6.  Are  there  any  other  situations  that,  in  your  view,  could  also  be  covered  by  a 
provision of this type addressing indirect incitement to commit terrorist offences? 
Are there any situations that, in your view, should not be covered by a provision of 
this type? 

One  reply  considers  that  the  situations  in  which  indirect  incitement  to  acts  of  terrorism  is 
criminalised, should be limited to situations where there is a subjective intent to incite, and an 
imminent risk that an act of terrorism will result from the incitement. Where these criteria are 
fulfilled,  and  where  the  offence  is  based  on  a  determinate  and  adequately  circumscribed 
definition of terrorism, and is applied in a way that is non-discriminatory, there is likely to be 
compliance  with  human  rights  law.  It  further  enumerates  five  situations  that  should  be 
excluded from any provision on incitement to terrorism: 

•  Explanation  of  circumstances  surrounding  the  resort  to  terrorist  acts  –  for  example, 
expression  of  understanding  of  the  desperation  of  those  who  resort  to  suicide  bombing  in 
response to a repressive regime; 

• Teaching and academic or media debate on the political situation in countries where there 
is  armed  opposition  to  the  government,  or  concerning  ideologies  grounding  terrorist 
movements; 

• Debate within immigrant communities of the political situations in home countries where 
there  is  internal  conflict  or  terrorist  violence,  including  constructive  debate  on  how  to 
counter an oppressive or undemocratic regime; 

•  Dissemination  –  including  by  the  media  and  by  human  rights  organisations  –  of 
information  on  violations  of  human  rights  by  a  government,  or  criticism  of  a  government 
for violations of human rights, for example those committed in suppressing a terrorist threat 
or in the course of an internal armed conflict; 

•  Media  or  NGO  reporting  of  statements  by  terrorist  groups,  where  such  reporting  is  not 
intended to incite terrorism. 

Another reply states that any prevention of general news reporting would have a grave effect 
on  the  freedom  of  the  press.  Any  attempt  by  governments  to  silence  critical  voices  is  a 
concern.  The  situations  that  should  not  be  covered  by  a  provision  of  this  type  are:  news 
gathering,  investigation  and  reporting,  editorial  comment.  A  similar  reply  adds  teaching  to 
these forms of behaviours not to be covered by this kind of provision. 

One answer stresses the existence of such indirect attempt in nowadays terrorist activity. 

7.  Could  you  provide  any  information/analysis/assessment  on  the  compatibility 
between  freedom  of  expression  and  the  notion  of  incitement,  whether  direct  or 
indirect,  to  commit  terrorist  offences?  Would  you  have  any  information/analysis 
on concrete cases examined by the competent authorities or Courts? 

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One of the answers points out the necessary respect of the principle of legality, the principle 
of  proportionality  and  the  absence  of  discrimination.  It  further  notes  the  importance  of  the 
authoritative standards set out in the Johannesburg Principles on National Security, Freedom 
of Expression and Access to Information. They should provide the benchmark for offences of 
incitement to acts of terrorism, including European law. Principle 6, in particular, states that:  

“Expression  may  be  punished  as  a  threat  to  national  security  only  if  a  government  can 
demonstrate that: 

(a) the expression is intended to incite imminent violence; 

(b) it is likely to incite such violence; 

(c) there is a direct and immediate connection between the expression and the likelihood or 
occurrence of such violence.” 

Another  answer  stresses  that  it  is  an  extremely  delicate  frontier.  It  points  out  that  it  is 
necessary to decide in a case-by-case basis, taking into consideration the context. 

One answer claims that It is not always possible for reporters to fully foresee the results that 
their  reporting  will  have.  This  is  where  the  public  interest  test  comes  in,  twinned  with 
editorial responsibility. Freedom of expression should be guaranteed for the press media in 
all  circumstances.  Journalists  do  have  a  right  to  inform  the  public  about  events  that  are 
outlawed, or indeed inform on information that is restricted if it is in the public interest to do 
so.  

Another  answer  notes  that  journalistic  activity  cannot  be  considered  as  direct  or  indirect 
incitement unless especial personal circumstances provide evidence of this.  

8.  a)  Could  you  provide  any  information/analysis/assessment  on  how  Member 
States' legal systems deal with the question of the glorification and/or the apology 
of terrorism or terrorist offences?  

b) If, for instance, a specific incrimination exists, how is such behaviour defined 
and how is the compatibility with freedom of expression guaranteed?  

One association notes that the treatment varies widely from Member State to Member State 
and it is difficult to generalise. It claims that several of its members would have had problems 
with the national legislation relating to terrorism. It emphasises how difficult it would be to 
develop a definition of glorification of terrorism at a EU level and the associated difficulties it 
would entail for freedom of speech. 

One reply expresses concern at the emerging trend for national implementation measures to 
go  further  than  is  required  by  Article  5  of  the  Council  of  Europe  Convention  and  thereby 
impose unnecessary and unjustifiable restrictions on rights to freedom of expression. It adds 
that  the  political  invocation  of  international  law  obligations  to  prevent  terrorism  as  a 
justification for measures restrictive of human rights, to an extent that is not justified by the 
terms of international agreements on terrorism, is of particular concern. 

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One  answer  states  that  the  Occidental  legal  systems  have  become  heavy  and  slow.  The 
current legislation referred to crimes related to terrorist activity constitutes some innovation 
in a controversial field where the human rights of the suspects are in fact respected. 

Another reply explains that every criminal act have to be interpreted in accordance with the 
constitution.  

9.  a)  Could  you  provide  any  information/analysis/assessment  on  how  Member 
States' legal systems deal with the question of transmission of bomb-making or 
other  terrorist  expertise,  as  well  as  any  exceptions  in  pre-defined  legitimate 
circumstances? 

b)  If,  for  instance,  a  specific  incrimination  exists,  how  is  such  behaviour 
defined and how is the compatibility with freedom of expression guaranteed? 
Kindly provide concrete examples if possible. 

One answer stresses that the mere act of publishing information about the ingredients of such 
devices should not be considered as a criminal act. It should not be illegal for the media to 
show film footage from terrorist camps or on how to make bombs in the interests of reporting. 

Another  reply  points  out  that,  more  than  the  legal  treatment,  what  matters  is  the  means  to 
identify and consequently deactivate such sources of information.  

A last reply details that if the action serves the purposes of art, science, research, teaching or 
reporting on current affairs or past events, it does not constitute a criminal offence according 
to German law. 

10.  Which  one  or  more  of  the  acts  in  the  list  below  would  you  qualify  as  "other 

terrorist  expertise"?  Should  you  think  that  certain  acts  should  be  added  to  or 

removed from the list, kindly specify them and motivate your answer. 

- in general, terrorist manuals or handbooks 

- instructions on how to conduct hostage-taking 

- instructions on how to create a terrorist cell 

- recipes for making poisons 

- instructions on how to make or utilise terrorist weapons (eg CBRN weapons) or 
a weapon of mass destruction 

One association agrees with all elements on the list but points out that may be other that are 
unknown. 

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Another association states that it is important not to be over-reaching to such an extent that 
people  don’t  receive  information  that  is  factually  useful  for  them  to  be  able  to  inform 
themselves against the dangers that are existing. 

11.  Please,  if  possible,  assess  the  impact  that  the  implementation  of  a  provision 
explicitly forbidding the transmission of bomb-making expertise or one or more or 
the abovementioned categories of "terrorism expertise" has or might have on you, 
as an industry, organization or body concerned, or the impact that it might have on 
civil society in general.  

The effects, points out one answer, depending on the way in which the provision is worded, 
could  hinder  the  freedom  of  the  press  to  report  on  terrorist  acts,  or  to  report  on  terrorist 
cases  before  the  court.  It  would  be  unwise  to  enter  into  the  territory  of  banning  the  factual 
element of information to the public, at the risk of being too restrictive of public information 
and  infringing  the  right  to  receive  information  as  protected  by  Article  10  of  the  European 
Convention on Human Rights. 

Another  answers  states  that,  since  the  dissemination  of  "terrorism  expertise"  may  have 
extremely pernicious consequences, the detection and close down of websites containing such 
information is an urgent need. 

A  last  reply  indicates  that  media  in  Germany  are  already  bound  by  constitutional  order, 
general  legislation  and  rules  for  the  protection  of  youth  and  personal  honour,  so  that  their 
activities are already limited by criminal law. In addition, journalists are adequately bound 
by  voluntary  undertakings  to  take  responsible  action.  As  for  the  danger  that  media 
involuntarily  promote  terrorist  aims,  such  indirect  effect  of  reporting  could  only  be 
completely prevented by unacceptable methods that would significantly restrict the use of the 
Internet and completely prohibit reporting on terrorism. 

12. Could  you  provide  any  information/analysis/assessment  on  whether  Member 
States'legal  systems  differentiate  between  various  types  of  media  in  relation  to 
inciting  tocommit,  aiding  or  abetting  terrorist  offences  and  restricting  the 
transmission of bomb-making or other terrorist expertise? 

Another reply explains that to their knowledge, newspapers are not treated differently to other 
media  and  adds  that  it  cannot  support  any  extension  of  police  powers  into  the  realms  of 
preventing publication of news reporting whether electronically or in print. 

One  reply  points  out  Great-Britain  as  the  example  of  how  working  jointly,  authorities  and 
Media, can keep the society informed.  

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13. Keeping  in  mind  the  generic  nature  of  Framework  Decisions  of  the  EU,  how 
would  you  view  the  possibility  of  amending  article  4  of  the  EU  Framework 
Decision on Combating Terrorism in order to achieve the following: 

- 

strengthen  the  prevention  of  incitement,  aiding  and  abetting  commit 
terrorist attacks, particularly via the internet  

-  avoid  unjustified  or  abusive  incrimination  of  acts  or  behaviour  which 

should not be considered as terrorist offences 

One answer stresses the two important points are the human and technical means available 
for  the  detention  of  that  kind  of  threat  and  always  respect  Rule  of  Law  and  the  Universal 
Declaration of the Human Rights. 

Another  replay  points  out  they  would  accept  amendments  that  avoid  as  far  as  possible  any 
unjustified or abusive criminalisation of acts or behaviours that should not be considered as 
terrorist  offences,  especially  where  this  endangers  the  media  investigation,  news  gathering, 
reporting, exchange of comment, opinion, taste, or suchlike on any press media platform. 

Another answer states that the Decision 7/06 of the OSCE Ministerial Council points out an 
important  first  step  with  regard  to  online  content,  calling  on  participating  States  “…when 
requested  to  deal  with  content  that  is  illegal  under  their  national  legislation  and  is  hosted 
within their jurisdiction, to take all appropriate action against such content and to co-operate 
with other interested States, in accordance with their national legislation and the rule of law, 
and in line with their international obligations, including international human rights law.” 

Another reply explains that German criminal law the distribution of written communications 
is  on  a  par  with  the  distribution  of  sound  and  image  carriers,  data  storage  devices, 
illustrations and other depictions and is sanctioned in the same way as incitement to criminal 
offences via the Internet. It is therefore unnecessary to specifically include actions that take 
place  via  the  Internet.  In  addition,  this  replies  comments  that  unfounded  suspicion  is 
adequately countered in that incitement is only punishable if it takes place intentionally. 

14. How would you address the particular difficulty of implementing Article 4 of the 

Framework Decision with respect to internet content? 

The replies stress that the solution does not lie in the updating of the Framework Decision in 
terms  of  its  detailing  but  it  mainly  concerns  finding  sophisticated  technical  solutions  that 
would enable fulfilment of the Framework Decision. The question should thus be dealt at the 
level of assignment of the human and technical resources. 

A last reply notes that German Internet law provide for a differentiated system that responds 
to  the  Internet-specific  difficulty  of  foreign  content  being  stored  on  own  servers  or  on  an 
access provider's servers without the provider being able to thoroughly check all the content. 
The Framework Decision, the reply continues, should be therefore confined to setting goals 
and should leave specific measures and means to the Member States. 

15. Please feel free to provide any further comments you might have on the subject. 

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Two remarks should be noted:  

•  The  need  to  safeguard  the  current  occidental  legal  system  and  the  focus  on 
technical and human means available for prevention and combat of terrorism. 

•  The  media  should  never  be  encouraged  by  policymakers  to  practice  any  kind  of 

self-censorship. 

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ANNEX  III:  REPLIES  TO  THIRD  QUESTIONNAIRE  ADDRESSED  TO  EUROPOL,  CEPOL  AND 

EUROJUST 

As  a  preliminary  remark,  it  should  be  noted  that  most  answers  have  not  followed  the 
questionnaire but have given a general reply expressing their main concerns or raising their 
interests. 

In  this  sense,  the  following  recurrent  points  of  the  replies  from  Eurojust  and  the 
European Judicial Network93 should be highlighted:  

•  The  present  subject  certainly  constitutes  a  political  urgency.  Terrorist  suspects  are 
active on the Internet, disseminating their message, taking part in chat-forums, using email 
and downloading terrorist or radical material. In major investigations an enormous amount 
of digital material has been seized. 

•  Need  for  translators  and  technical  expertise  for  monitoring  radical  material  on  the 
Internet- Need for enhancing instruction and training of law enforcement authorities. 
Presently,  law  enforcement  authorities  lack  of  capacity  and  expertise,  processing  and 
interpreting  the  radical  websites  in  question  is  an  enormous  time-consuming  and  labour-
intensive process, because of the quantity of the material and the languages in which the 
documents  have  been  established.  Experiences  on  the  field  show  that  for  the  successful 
implementation of this task it is necessary (thorough) knowledge of the Arab language and 
culture.  The  capacity  at  European  level  for  interpreting  radical  websites  should  be 
improved.  Attention  should  also  be  given  on  the  possibilities  of  innovative  detection 
methods for the internet surveillance. 

•  Need for proper legislation so that law enforcement authorities are not  hindered by 
lack of legal provisions. Outlawing internet websites supporting terrorist views would be 
a good step forward (designating as terrorist crimes the offences of sedition, dissemination 
of  seditious  writings  and  fomenting  hatred).  The  dissemination  or  possession  of  bomb-
making  and  similar  expertise  in  itself  is  not  considered  a  criminal  offence  in  itself  in 
several  Member  States  but  needs  the  intention  of  the  transferor  to  facilitate  to  commit  a 
crime  or  offence  which  the  transferee  should  plan  or  commit.  It  might  be  assimilated  to 
child pornography and become a criminal offence in itself (designating as terrorist crimes 
the  possession  and  dissemination  of  terrorist  material  such  as  instructions  for  making 
bombs).  

•  Particular  difficulties  to  trace  suspects  when  the  radical  material  is  hosted  in 
countries  lacking  appropriate  legislation.  Sometimes,  these  countries  lack  of  ability  or 
willing and are reluctant to prosecute or extradite a certain individuals. 

•  Need to respect human rights and freedom of speech in particular. Certain measures 
are  bound  to  be  more  intrusive  and  would  sometimes  limit  individual  rights  but  their 
impact  will  be  limited  by  their  legality,  proportionality  and  necessity  in  a  democratic 
society. 

93 

European Judicial Network has not sent a unified answer but several replies from three of its Members. 

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•  Interventions  on  the  Internet  Notice  and  take  down  of  radical  internet  sites  and/or 
radical material remain laborious until now. In addition, after the radical thinking and 
terrorist  material  is  taken  down  from  a  website,  it  re-appears  very  easily  on  another 
website.  A  more  universal  application  of  the  Cyber-crime  convention  may  improve  the 
success of prosecutions. 

•  Need  of  dialogue  with  internet  service  providers,  trying  to  bring  about  agreements  to 
improve detection and tracing of radical material and its authors. Importance of the Data 
retention  Directive,  which  requires  Internet  Service  Providers  and  telecom  operators  to 
keep details of their subscribers' communication for up to two years.  

Concerning the detailed answer forwarded by Europol, it has been summarised below: 

1.  How  would  you  assess  the  ability  of  law  enforcement  authorities  in  Member  States  and 
your own organisation if applicable to respond to the use of new technologies and especially 
of the internet for terrorist purposes?  

The  ability  of  law  enforcement  authorities  in  Member  States  to  respond  to  the  use  of  new 
technologies  and  especially  of  the  Internet  for  terrorism  purposes  is  not  homogenous  and 
depends on several factors: 

•  Evaluation of the threat directly related to each Member State’s experience in the field 
of terrorism. There is an important difference between those who have and those who have 
not experienced national terrorism. 

•  Law  enforcement  authorities’  action  against  propaganda  website  is  very  limited  due  to 
the  fact  that  most  of  these  are  located  outside  the  remit  of  the  national  legislation. 
Websites have such a short lifespan that by the time a legal action is brought through the 
international legal channels, they will have disappeared. 

Factors  to  be  considered  also  include  the  diversity  of  policing  within  the  Member  States 
regarding: 

•  the legal mandate of concerned law enforcement authorities 

•  the monetary, technical and personal resources available  

•  the quality & training of respective law enforcement officers 

•  the technical equipment & standards at their disposal 

•  the language & translation capabilities of the staff 

•  the standardisation of information exchange 

•  the handling, processing, storing & forwarding of data 

2. How would you assess, in particular, the ability of law enforcement authorities in Member 
States  and  your  own  organisation  if  applicable  to  respond  to  the  dissemination  of  terrorist 
propaganda  and  bomb-making  and  other  terrorism  expertise  through  the  internet?  Do  you 

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consider  that  this  ability  could  improve  by  modifying  the  existing  legal  framework  and  the 
Framework Decision on combating terrorism in particular? 

The  ability  of  law  enforcement  in  Member  States  to  respond  to  the  dissemination  of 
terrorism related information via the Internet is very limited. Their task depends on codified 
constitutional  and/or  national  law.  While  the  administrators  of  the  websites  are  most  often 
outside the EU and thus out of reach, this leaves law enforcement with the issue, at MS level, 
of  policing  the  individual  use  on  a  local  computer  and  perhaps  the  network  to  which  the 
system is connected.  

Besides, resources are scarce. Therefore Member States critically need to evaluate and direct 
their efforts properly.  

The  use  of  the  Internet  for  terrorism  support  or  activities  clearly  identifies  how  the  law 
enforcement network is divided in terms of competencies: 

•  When  proactive  Internet  policing  is  conducted  on  a  long  term  base,  which  is  usually 
conducted  by  intelligence  services,  to  detect  and  monitor  the  movement  of  Islamist 
websites.  The  likelihood  of  detection  and  identification  of  the  website  administration 
increases significantly. 

•  On the other hand, when Internet policing is conducted by Law enforcement agencies for 
the  aim  of  reactive  policing,  the  likelihood  of  detection  and  identification  of  the  website 
administration  decreases  because  the  primary  objective  is  to  prevent  the  crime  from 
continuing. 

3.  Could  you  indicate  the  main  difficulties  of  the  law  enforcement  authorities  in  Member 
States  and  your  own  organisation  if  applicable,  to  survey  those  who  disseminate  terrorist 
propaganda and bomb-making and other terrorist expertise through the internet?  

In case your organisation keeps relevant statistics or data, we would be extremely grateful if 
you could make them available.  

The  number  of  terrorism  related  websites  that  need  to  be  monitored  in  relation  to  the 
potential  threat  to  the  European  Union  and  its  Member  States  is  huge  and  the  scope  of 
languages covered by these websites includes many non European languages. The problem of 
efficient  website  evaluation  and  assessment  through  native  speakers  continues  to  be  a 
major one. Not only have the officers in charge to read the language of the website, but also 
to speak and to understand the hidden messages of the Islamist extremist terrorism subculture 
or the specific content the website is concerned with or intended to address.  

4. Could you indicate the main difficulties of law enforcement authorities in Member States 
and  your  own  organisation  if  applicable,  to  prosecute  those  who  disseminate  terrorist 
propaganda and bomb-making and other terrorist expertise through the internet?  

In case your organisation keeps relevant statistics or data, we would be extremely grateful if 
you could make them available.  

The main problem  of  law  enforcement to forward a case to be prosecuted in  the  court of 
law is the identification of those who are responsible for the website and its contents.  

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Because the Internet is virtual and impersonal, the responsible person(s) can hide behind the 
medium’s anonymity. Therein harboured is the reasoning of the increasing use of the Internet 
being a platform for Islamist propaganda and indoctrination. 

To overcome these difficulties, prevention and neutralization of Islamist indoctrination and 
propaganda should be a top priority on the agenda of law enforcement agencies and security 
or intelligence services alike. Reluctances to share information between both sides need to 
be reduced through joint operations.  

A  way  of  fighting  against  anonymity:  users  should  be  required  to  identify  themselves  to  the 
provider before going online, at least as far as European jurisdictions are concerned. 

5.  Which  measures, either  legislative or not, would in your view be  preferable to overcome 
the difficulties you have indicated in your answers to questions 3 and 4 above? Please, kindly 
detail your answer. 

Member States should be encouraged to combat the phenomenon in a consistent effort and 
to share the burden. The duplication of efforts and waste of scarce resources can no longer 
be accepted. There is an urgent and absolute need to develop a common platform where all 
non sensitive material related to the use of the Internet for terrorism support and propaganda 
should be pooled and made available to all European Law enforcement agencies. This is what 
is  intended  by  the  German  Presidency’s  “Check  the  Web”  initiative.  However  such  an 
ambitious project needs to be supported by the intelligence community and legal constraints 
related to data protection have to be considered. 

Furthermore, resources need to be distributed to develop systematic training with respect to 
awareness,  phenomenon,  expertise,  language,  research  and  assessment  training  of  law 
enforcement and intelligence institutions officers.  

Considering  that  a  wide  range  of  terrorism  related  websites  are  out  of  range  of  Member 
States legislation, there is a need for a common European Union approach towards foreign 
States  which,  knowingly  or  not,  are  harbouring  terrorism-related  websites  to  have  them 
establish or change their legislation.  

While  the  European  Union  maintains  a  list  of  proscribed  terrorist  organisations, 
consideration  should  be  given  to  drafting  a  list  of  terrorism-related  websites;  such  a  list 
should  be  classified  and  frequently  updated,  but  it  would  at  least  provide  an  evaluation 
instrument at European Union level. 

6. Which measures, either legislative or not, would in your view be preferable to improve the 
ability  of  law  enforcement  authorities  in  Member  States  and  your  own  organisation  if 
applicable, to address the more general threat of the use of new technologies and especially of 
the internet for terrorist purposes? Please, kindly detail your answer. 

As  for  Europol,  the  main  constraints  in  relation  to  being  proactive  in  monitoring  and 
disseminating information related to terrorist propaganda on the Internet are: 

1. 

Limitations imposed by the Europol Convention preventing proactive approach when 
related to private chat rooms or forums. 

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2. 

Extensive data protection regime related to personal data which hinders free storage 
the  Internet. 
and  exchange  of  assessment  of 

information  gathered  from 

7. Concerning the measures you have referred to in your answers to questions 5 and 6: 

a 

b) 

c) 

Could you estimate their costs for law enforcement authorities in Member States and 
your own organisation if applicable, and the need of economic support of the latter? 

Could  you  estimate  their  impact  on  internet  users,  and  their  compatibility  with 
freedom  of  expression  and  the  right  to  respect  for  private  and  family  life  as  laid 
down  in  the  Convention  for  the  Protection  of  Human  Rights  and  Fundamental 
Freedoms of the Council of Europe? 

Could you estimate their impact on the effectiveness of the fight of law enforcement 
authorities against terrorism? 

a)  The  estimation  of  development  costs  of  a  common  exchange platform  needs  an  in-depth 
study,  but  it  would  be  relatively  low  and  should  be  considered  in  relation  with  the  benefit 
generated by avoiding duplication of work amongst law enforcement agencies in the Member 
States. 

b)  The  question  of  data  protection  regime  and  protection  of  privacy  and  family  life  for 
known  terrorist  who  post  statements  on  the  Internet  calling  for  mass  murder  should  be 
considered. 

8. What are your views on the need to enhance the technological and linguistic resources of 
law  enforcement  authorities  in  Member  States  and  your  own  organisation  if  applicable,  in 
order to improve their ability to monitor the use of the internet for terrorist purposes? Please, 
kindly detail your answer. 

There  is  a  need  for  cooperation  between  law  enforcement  agencies  and  the  intelligence 
community within the European Union  and  with  external  partners. The main topics  to be 
developed would be: 

•  To exchange information to avoid duplication of work between agencies  

•  To develop a common platform such as the one foreseen with the German initiative “Check 
the  web”  and  with  the  Europol  counter-terrorist  Handbook  Project,  to  provide  law 
enforcement with readily available material. 

•  To develop technical training to ensure that all Member States have a minimum capability 

in the field of monitoring and countering terrorist propaganda on the Internet. 

•  To provide training for linguists in the relevant languages, including the enhancement of 
their  cultural  knowledge  and  their  understanding  of  the  groups  or  individuals  they  are 
facing. Thus they would be able to better assess the material found on the Internet. 

9.  What  are  your  views  on  the  need  to  strengthen  the  instruction  and  training  of  law 
enforcement authorities in Member States and your own organisation if applicable, on the use 
of new technologies and especially the internet for terrorist purposes in order to improve their 

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ability to respond to the new modus operandi of terrorists groups? Please, kindly detail your 
answer. 

In  the  field  of  communication,  the private  sector  is  constantly  developing a  number  of  new 
technologies. There is a need to monitor these future developments in order  to be  prepared 
when these technologies will be on the market. For this purpose, a good cooperation between 
the  concerned  agencies  and  the  private  sector  is  required.  Information  gathered  should  in 
turn  be  made  available  to  all  Member  States  to  avoid  discrepancies  in  their  respective 
capabilities. 

10.  Concerning  the  enhancement  of  technological  and  linguistic  resources  as  well  as  the 
strengthening of instruction and training as referred to in questions 8 and 9 above: 

a) Could you  estimate their costs for law enforcement authorities in the Member States and 
your own organisation if applicable, and the need of economic support of the latter? 

b) Could you estimate their impact on the effectiveness of the fight of law authorities against 
terrorism? 

It is not possible to assess the cost or impact of these measures without a proper study. 

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ANNEX  IV:  INSUFFICIENCY  OF  EU  AND  NATIONAL  LEGISLATION  APPLICABLE  TO  THE 
DISSEMINATION OF TERRORIST PROPAGANDA AND TERRORIST EXPERTISE 

Table of contents 

1. The Framework Decision on combating terrorism 

1.1 Article 2  

a. The provision in the Framework Decision 

b. National provisions implementing Article 2 

1.2 Article 4 

a. The provision in the Framework Decision 

b. Doctrinal background: participation and authorship in comparative law 

c. National provisions implementing Article 4 

13. Additional national legislation 

1.4 Conclusions 

2. Other relevant instruments 

1. The Framework Decision on combating terrorism  

The  question  addressed  in  this  Annex  is  whether  the  Framework  Decision  on  combating 
terrorism  covers  the  transmission  of  both  terrorist  propaganda  and  terrorist  expertise,  in 
particular  through  the  Internet.  It  is  easy  to  verify  that  neither  "terrorist  propaganda"  nor 
"terrorist expertise” are explicitly referred to in the instrument referred to. Nevertheless, it is 
more complex to examine whether such forms of behaviour are in fact covered by some of its 
provisions. Articles 2 (offences relating to a terrorist group) and 4 (inciting, aiding or abetting, 
and attempting) should be examined in this respect. 

1.1 Article 2  

a. The provision in the Framework Decision 

Article 2 of the Framework Decision reads as follows: 

"Offences related to a terrorist group,  

1.  For  the  purposes  of  this  Framework  Decision,  "terrorist  group"  shall  mean:  a  structured 
group  of  more  than  two  persons,  established  over  a  period  of  time  and  acting  in  concert  to 
commit terrorist offences. "Structured group" shall mean a group that is not randomly formed 
for the immediate commission of an offence and that does not need to have formally defined 
roles for its members, continuity of its membership or a developed structure. 

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2.  Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  following 
intentional acts are punishable: 

(a) directing a terrorist group; 

(b)  participating  in  the  activities  of  a  terrorist  group,  including  by  supplying  information  or 
material  resources,  or  by  funding  its  activities  in  any  way,  with  knowledge  of  the  fact  that 
such participation will contribute to the criminal activities of the terrorist group." 

It will therefore be examined whether the dissemination of terrorist propaganda and terrorist 
expertise  fully  or  partially  fit  in  "participating  in  the  activities  of  a  terrorist  group  with 
knowledge of the fact that such participation  will contribute to  the criminal activities of  the 
terrorist group". 

Two preliminary remarks can be made on Article 2(2) (b) before trying to answer the question 
above. Firstly, "supplying information or material resources, or by funding its activities in any 
way" constitute mere examples of a non exhaustive enumeration. Secondly, the "knowledge 
of  the  fact  that  such  participation  will  contribute  to  the  criminal  activities  of  the  terrorist 
group" represents a compulsory requirement for any participation. Actually, this requirement 
comprises two requisites: not only must the participation contribute to the criminal activities 
of the terrorist group but the offender must also be aware of this.  

For  further  clarification,  The  Commission  Staff  Working  Paper  annexed  to  the  Report  from 
the Commission based on Article 11 of the Council Framework Decision of 13 June 2002 on 
combating terrorism (hereafter, the "report") provides for an interpretation of this provision on 
its page 14 reproduced below:  

"From  the  Commission’s  point  of  view  the  rationale  behind  this  provision  is  to  provide  for 
offences  related  to  terrorist  groups  as  independent  criminal  facts.  Although  this  is  not 
explicitly  mentioned  in  the  Framework  Decision,  it  still  derives  from  the  logic  of  the 
instrument; as such offences they are specifically referred to in relation to inciting, aiding and 
abetting, have been assigned specific minimum-maximum penalties, may lead to the liability 
of legal persons or must be covered by rules on jurisdiction. Moreover the drafting of Article 
2(2) (b) uses an extremely wide and open formula designed to embrace not only membership 
in a terrorist organisation but any other acts of assistance likely to contribute to the criminal 
activities of the group, even if undertaken by those who do not belong to or can not be proven 
to  be  members  of  the  organisation.  In  addition  this  participation,  as  described  in  the 
Framework  Decision,  is  not  necessarily  linked  to  the  commission  of  specific  terrorist 
offences, not even as concerns the intentional element. In this sense, the aim of Article 2(2) 
(b)  is  to  ensure  that  those  who  through  their  actions,  contribute  to  the  development  of  a 
terrorist  group  may  be  prosecuted,  even  if  such  actions  have  no  direct  link  with  the 
commission of specific offences. To prevent an excessive incrimination, it is required that the 
offender  acts  with  the  knowledge  that  by  his  actions  he  will  contribute,  in  general,  to  the 
criminal  activities  of  the  group.  Should  the  intention  to  contribute  to  a  specific  offence  be 
required,  there  would  be  no  added  value  in  relation  to  the  general  rules  on  criminal 
participation." 

Despite  this  broad  interpretation,  it  is  doubtful  that  public  provocation  to  commit  terrorist 
offences, recruitment for terrorism and training for terrorism through the internet are covered 
by  Article  2(2)  (b).  Such  propaganda  aims  at  increasing  the  number  of  either  supporters  or 
violent activists but it is not linked to a particular terrorist group. There are many examples of 

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this kind of activity94 that must be explained in  the context of an increasingly decentralised 
terrorist activity, favoured by the Internet95: the modern terrorist network and particularly that 
of the global Djihadist movement, has no hierarchy anymore. It consists of a sum of lightly 
structured cells, sometimes linked to the network, sometimes independent96. Only one part of 
radical  websites  spread  information  about  a  specific  terrorist  group;  the  rest  are  concerned 
with the general movement of Djihad97.  

Something different is the case of terrorist propaganda, when it aims at the recruitment of new 
members  into  a  terrorist  group  as  well  as  the  financing  of  a  terrorist  group.  The  explicit 
mentioning of terrorism funding as a form of participation leads to the conclusion that those 
collecting  such  funding  should,  with  more  reason,  be  considered  as  participants.  The  same 
goes  for  recruitment:  if  membership  is  a  crime  those  recruiting  new  members  should  be 
punished even more seriously. However, the transmission of messages of propaganda aiming 
at collecting funds or recruiting new members is not strictly the same as actual fund-raising or 
recruiting.  

In order to consider that both types of messages referred to here are in fact covered by Article 
2, it might be argued that they represent an attempt at fund-raising and recruitment. However, 
Article  4  on  inciting,  aiding  or  abetting  and  attempting  does  not  oblige  Member  States  to 
ensure that attempting to commit an offence referred to in Article 2 is made punishable. 

As for the transmission of terrorist expertise, we should highlight, firstly, that Article 2(2) (b) 
refers  explicitly  to  “supplying  information”  as  a  way  to  participate  in  the  activities  of  a 
terrorist  group,  which  seems  to  suit  perfectly  the  transmission  of  terrorism  expertise. 
However,  the  requirement  of  contributing  to  the  criminal  activities  of  a  terrorist  group 
provides for a major threshold. In this sense, the transmission of expertise to an undetermined 
audience, such as online manuals posted in websites or chat-forums falls outside of the scope 
of Article 2(2) (b). And the same would apply to instructions addressed to specific potential 
recruits  who,  although  they  might  be  determined,  by  definition  are  not  yet  members  of  a 
terrorist group. This interpretation rules out a significant part of the transmission of terrorist 
expertise  from  the  scope  of  application  of  Article  2.  Furthermore,  since  the  information 
supplied must "contribute to the terrorist activities of a terrorist group", it could be argued that 
terrorist expertise addressed to the members of a terrorist group but not useful for the criminal 
activities of that particular group would not be covered.  

However,  the  dissemination  of  terrorist  expertise  to  an  undetermined  audience  or  potential 
recruits  may  be  punished  a  posteriori,  if  such  information  was  actually  accessed  by  the 
members of a terrorist group or the potential recruit joins a terrorist group and, in both cases, 
the said information contributes to the activities of the group. 

It  seems  that  a  significant  part  of  the  dissemination  of  terrorist  propaganda  and 
terrorist  expertise,  amounting  to  public  provocation  to  commit  terrorist  offences, 
recruitment for terrorism and training for terrorism, is – as such - not punishable under 
Article 2. However, the dissemination of terrorist propaganda may be punished a posteriori, 
insofar as recipients are actually recruited into a terrorist group or provide for funding for a 

94 
95 
96 
97 

See, i.e. “The use of the Internet by Islamic extremists”, mentioned above, pp. 9 and 11. 
See “Terrorist use of the Internet and fighting back”, mentioned above, p. 11.  
See "L'usage d'Internet à des fins terrorists", mentioned above, p. 5. 
See  “Jihadism  online  –  A  study  of  how  Al-Quida  and  radical  Islamist  groups  use  the  Internet  for 
terrorist purposes”, mentioned above, p. 15. 

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terrorist group. The dissemination of terrorist expertise is punishable as long as it is addressed 
to  the  members  of  a  terrorist  group  and  contributes  to  their  criminal  activities.  The 
dissemination of terrorist expertise addressed to undetermined audience or to potential recruits 
may also be punishable a posteriori, if such  information  was  accessed  by  the  members  of  a 
terrorist group and contributes to its criminal activities. 

b. National provisions implementing Article 2 

First  of  all,  the  assessment  of  the  first  evaluation  report  should  be  examined98.  Although  it 
does not explore this question in particular, it analyses the content and scope of the different 
national provisions, which is useful for our purposes.  

Some of the national provisions examined in the first evaluation report seem to have a broader 
scope  than  that  of  Article  2(2)  (b).  Germany  and  Portugal  incriminate  the  "support"  for 
respectively terrorist organisations and groups. However, Germany does not define the term 
and  Portugal  limits  itself  to  reproduce  the  examples  of  participation  of  the  Framework 
Decision. Germany, in addition, punishes those who recruit for a terrorist group. The United 
Kingdom  punishes  "inviting  support"  for  proscribed  organisation  besides  “belonging  or 
professing  to  belong”  to  it  while  in  Spain  performing,  requesting  or  facilitating  any  act  of 
collaboration  with  the  activities  or  purposes  of  a  terrorist  group  constitutes  an  offence.  In 
Austria, participation in a terrorist group consists of “taking part in its activities by supplying 
information or assets or in some other way in the knowledge that, by doing so, he is furthering 
the group or its offences”. Ireland incriminates the provision of assistance to a terrorist group. 
Finally, Italy and France condemn the participation in a terrorist group, using the terminology 
of Article 2, but they do not define it or include the requirement of “knowledge of the fact that 
such participation will contribute to the criminal activities of the terrorist group”, which might 
also amount to a broader scope99. 

Concerning  the  information  submitted  in  view  of  the  second  evaluation  report,  which  is 
currently under elaboration, Member States already evaluated in the previous report have not 
forwarded  new  relevant  provisions  in  this  respect.  However,  the  implementing  provisions 
submitted  by  the  Member  States  not  yet  evaluated  constitute  relevant  information.  Some  of 
them seem to have a broader scope than that of Article 2(2) (b). For example, Luxembourg 
legislation  punishes  those  that  consciously  and  willingly  participate  actively  in  a  terrorist 
group as well as those participating in the preparation or commission of a licit activity by a 
terrorist  group,  knowing  that  their  participation  will  contribute  to  its  objectives.  Cyprus 
incriminates  not  only  “involvement”  in  a  terrorist  group  but  also  “support”,  which  is  very 
broadly  defined,  covering  both  providing  services  and  offering  to  provide  them.  Slovenian 
criminal  code  makes  the  participation  in  the  activities  of  a  criminal  association  punishable, 
irrespective  of 
the  criminal  offences,  without  defining 
“participation”.  In  addition,  other  Member  States  incriminate  membership  or  participation 
without  defining  it  or  including  the  requirement  of  Article  2,  as  it  is  the  case  of  the 
Netherlands or Poland, which may also amount to a broader scope.  

the  actual  commission  of 

98 

99 

See Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 
2002 on combating terrorism COM(2004) 409, as well as The Commission Staff Working Paper annex 
to the Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 
2002 on combating terrorism, SEC(2004) 688. 
See The Commission Staff Working Paper annex to the Report from the Commission based on Article 
11 of the Council Framework Decision of 13 June 2002 on combating terrorism, pp. 10-13. 

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Without prejudice to the relevant national case-law, not examined for the elaboration of the 
evaluation reports, it seems that various Member States have implemented Article 2 through 
provisions  that  cover  the  dissemination  of  terrorist  propaganda  to  a  further  extent  than  this 
Article  requires.  In  particular,  some  Member  States  have  eliminated  the  requirement  of 
contributing to the criminal activities of the terrorist group included in Article 2; others have 
changed it into a broader formula such as the Austrian “in the knowledge that, by doing so, he 
is furthering the group or its offences” or have included clarifications such as the Slovenian 
“irrespective  of  the  actual  commission  of  criminal  offences”.  The  use  of  terms  such  as 
“support”  or  “inviting  support”  suits  even  better  the  transmission  of  terrorist  propaganda 
aiming  at  fund-rising  or  recruitment.  Moreover,  most  Member  States  implement  Article  4 
through  generally  applicable  provisions.  As  a  consequence,  attempting  offences  related  to 
terrorist  groups  and,  in  particular,  attempting  to  recruit  members  or  to  rise  funding  for  a 
terrorist group would be punishable.  

However, most of these national formulas seem to be still limited to propaganda referring to a 
terrorist  group  and  resemble  Article  2  in  the  sense  that  they  would  not  cover  messages 
intending  to  gain  supporters  for  the  terrorist  cause  or  encourage  supporters  to  engage  into 
terrorist activity without referring to any terrorist group in particular.  

By  contrast  with  the  transmission  of  terrorist  propaganda,  the  national  provisions 
implementing  Article  2  do  not  seem  to  imply  any  significant  advance  in  tackling  the 
dissemination  of  terrorist  expertise.  Taking  into  consideration  that  the  Framework  Decision 
already refers to “supplying information” as a way of participation, broader formulas do not 
suit better the relevant behaviour. As for the main limit of Article 2 to cover the transmission 
of  terrorist  expertise,  i.e.  contributing  to  the  criminal  activities  of  a  terrorist  group,  the 
situation remains unchanged under national implementing provisions. 

National  provisions  implementing  Article  2  of  the  Framework  Decision  generally  seem 
to cover the dissemination of terrorist propaganda to a further extent than this Article 
requires. However, general publicity not linked to a specific terrorist group appears to 
remain uncovered by the relevant provisions in most Member States. The dissemination 
of terrorist expertise does not seem better tackled by Member States' implementing provisions 
than by Article 2 of the Framework Decision. 

1.2 Article 4 

a. The provision in the Framework Decision 

Article 4 of the Framework Decision reads as follows:  

"Inciting, aiding or abetting, and attempting 

1. Each Member State shall take the necessary measures to ensure that inciting or aiding or 
abetting an offence referred to in Article 1(1), Articles 2 or 3 is made punishable. 

2. Each Member State shall take the necessary measures to ensure that attempting to commit 
an  offence  referred  to  in  Article  1(1)  and  Article  3,  with  the  exception  of  possession  as 
provided  for  in  Article  1(1)(f)  and  the  offence  referred  to  in  Article  1(1)(i),  is  made 
punishable." 

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The  question  to  answer  in  this  case  is:  does  the  obligation  for  Member  States  to  "take  the 
necessary  measures  to  ensure  that  inciting  or  aiding  or  abetting  an  offence  referred  to  in 
Article  1(1),  Articles  2  or  3  is  made  punishable"  cover,  either  fully  or  partially,  the 
dissemination of terrorist propaganda or terrorist expertise? 

Some preliminary remarks can be made. First of all, it is important to note that Article 4 refers 
to inciting, aiding or abetting not only the terrorist offences laid down in Article 1(1) of the 
Framework Decision but also to the offences relating to a terrorist group and offences linked 
to  terrorist  activities  under  Articles  2  and  3  of  the  same  instrument.  The  combination  of 
Articles 2 and 4 may be especially far reaching. For example, since funding the activities of a 
terrorist  group  constitutes  a  category  of  participation  under  Article  2,  inciting,  aiding  or 
abetting  the  funding  of  terrorist  activities  falls  within  the  scope  of  Article  4.  And  the  same 
logic  applies  to  the  request  for  all  kinds  of  participation  in  the  activities  a  terrorist  group, 
including  invitations  to  become  a  member.  It  cannot  be  stated,  however,  that  all  messages 
requesting funding or new recruits for a terrorist group are automatically included in the scope 
of the provision in question. It is necessary to study the nature of inciting, aiding or abetting 
and  see,  in  particular,  whether  messages  that  are  not  addressed  to  particular  recipients  but 
accessible to anyone in a website or restricted to “members” of a chat forum fit in the concept 
of participation.  

Secondly,  it  must  be  stressed  that  Article  4  does  not  constitute  an  autonomous  offence: 
inciting,  aiding  or  abetting  and  attempting  are  only  punished  insofar  as  they  are  linked  to 
other offences included in the Framework Decision. In particular, Member States are obliged 
to “ensure that inciting, aiding or abetting an offence referred to in Article 1(1), Articles 2 or 3 
is made punishable”.  

A  strict  interpretation  of  the  required  link  to  one  of  these  offences  would  rule  out  the 
application of Article 4 to several messages of terrorist propaganda: for example, those that 
glorify  suicide-bombers,  justify  terrorism  or  generally  encourage  to  join  the  Djihad. 
Nevertheless, even under a broader interpretation, terrorist propaganda aiming at fund-raising 
or recruiting cannot be considered automatically covered by Article 4. As explained above, it 
will be necessary to study the nature of inciting, aiding or abetting and see whether messages 
that  are  not  addressed  to  particular  recipients  respond  to  the  concept  of  participation.  In 
addition, it must also be considered whether messages that do not detail the circumstances of 
the offence, such as general calls for terrorist violence, can be qualified as participation.  

As  regards  messages  containing  terrorist  expertise,  they  might  be  easily  considered  to  be 
forms  of  aiding  or  abetting  under  Article  4.  But  once  more,  an  examination  of  whether 
“inciting,  aiding  or  abetting”  a  criminal  offence  implies  other  requirements,  in  particular 
concerning the individualisation of the recipient as well as certain degree of determination of 
the circumstances of the offence is still required. 

Finally, Article 4 does not require Member States to ensure that attempting to incite, aide or 
abet  is  made  punishable.  This  is  because  Article  4(2)  only  obliges  Member  States  to 
incriminate  the  attempt  of  the  offences  laid  down  by  Articles  1(1)  and  3.  Following  this 
reasoning,  messages  posted  on  the  Internet  would  be  excluded  from  the  scope  of  Article  4 
unless  a  recipient  was  actually  incited,  aided  or  abetted  to  commit  one  of  the  relevant 
offences.  Under  this  interpretation,  the  Framework  Decision  would  not  require  that  the 
transmission of terrorism propaganda or terrorist expertise itself is made punishable. So, even 
if the message was addressed to a particular person and represented a clear intent of inciting, 

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aiding  or  abetting  the  commission  of  a  circumstanced  offence,  its  author  would  not  be 
punishable under Article 4 unless the recipient was actually incited, aided or abetted. 

It is doubtful that the dissemination of terrorist propaganda or terrorist expertise itself 
is not punishable under Article 4, since the mere attempt of incitement, aide or abet is 
not  incriminated.  This  behaviour  may  be  incriminated  a  posteriori  insofar  if  specific 
recipients are actually incited, aided or abetted to commit some of the offences referred to in 
Articles 1(1), 2 and 3.  

b. Doctrinal background: authorship and participation in comparative law 

In order to better understand both Article 4 and the national provisions on participation and 
common  commission  of  offences,  a  brief  explanation  of  the  main  doctrinal  positions  is 
offered under this section. The commission of an offence together with others receives very 
different treatments under the various national systems stemming from two main concepts of 
complicity: the theory of the plurality of offences, for which there are as many offences as co-
operators and the theory of the unity of the offence, for which several persons co-operate to 
the commission of a single offence.  

The plurality of offences implies that every co-operator shall be punished for his own offence 
and  any  distinction  between  perpetrator,  accomplice,  instigator  or  other  becomes  irrelevant. 
Furthermore,  it  implies  that  the  aggravating  circumstances  between  the  co-operators  are  not 
transferable.  

The unity of the offence, on the other hand, assumes that the co-operators do not necessarily 
have  the  same  role  and  creates  different  categories,  mainly  that  of  the  accomplice.  The 
criminality  of  his  act  “derives”  from  the  criminality  of  the  act  committed  by  the  main 
perpetrator. 

The unity of the offence is the dominant theory, followed by most criminal laws100. However, 
it  comprises  different  systems,  depending  on  the  categories  used:  some  only  distinguish 
between  the  main  author  and  the  accomplice  or  accessory,  some  add  the  concept  of 
“accomplice after the fact” or “receleur”, some use the category of “instigator”, some national 
systems  make  a  distinction  between  direct  and  indirect  accomplices....  Despite  the 
divergences, some common rules may be established: every form of complicity requires the 
intent of the agent and the action of the accomplice has to be linked to the main action. 

Among the legal systems following the dominant theory, in some of them incitement is not 
punishable unless the offence is committed, or at least the commission has started, whereas in 
others  incitement  is  punishable  even  in  the  absence  of  any  result.  The  common  law  falls  in 
this last group, punishing incitement as an autonomous offence. According to the example of 
the English case law, a material and intentional elements are required: the behaviour, which is 
very  broadly  described  as  the  fact  of  “persuading,  asking,  corrupting,  threatening,  and  this 
either  explicitly  or  implicitly”  and  “the  intention  of  the  instigator  that  the  offence  will  be 

100 

The article "Grunderfordernisse einer Regelung des Allgemeinen Teils", in "Wirtschaftsstrafrecht in der 
Europäischen  Union", 
(Rechtsdogmatik-  Rechtsvergleich-Rechtspolitik),  Freiburg-Symposium, 
Tiedemann  (ed.),  Carl  Heymanns  Verlag  KG.  München,  2001,  identifies  Austria,  Italy,  Denmark  and 
Norway  as  criminal  codes  adopting  the  theory  of  the  plurality  of  offences  and  notes  that  all  other 
Members  of  the  European  Union  follow  the  theory  of  the  unity  of  the  offence.  The  article,  however, 
precedes the enlargement of 1 May 2004. 

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committed,  which  implies  the  knowledge  of  all  circumstances  of  this  offence,  including  the 
intention of the perpetrator(...)”101.  

Concerning  the  theory  of  the  plurality,  anybody  materialising  an  element  required  for  the 
commission  of  the  offence  is  considered  a  perpetrator,  his  behaviour  being  punishable 
according to his intention. As a consequence, the co-operator is criminally liable irrespective 
of  the  liability  of  the  rest  of  co-perpetrators  and  whether  or  not  they  have  come  to  the 
commission or the attempt of an offence. Moreover, under this model, attempted participation 
is  punishable.  However,  it  cannot  be  excluded  that  the  criminal  liability  of  the  participant 
requires  certain  degree  of  determination  of  the  circumstances  of  the  final  offence  or  the 
individualisation of the co-perpetrators.  

It  can  be  defended  that  under  the  theory  of  the  unity  of  the  offence,  participation 
requires either the commission of the offence, its attempt, or at least a concrete idea or 
project of the commission of a specific offence. Furthermore, it seems that the perpetrator or 
potential  perpetrator  needs  to  be  individualised,  either  because  he  commits  or  attempts  to 
commit  the  offence  or  because  the  participant  knows  his  intention.  Under  the  theory  of  the 
plurality,  participation  does  not  seem  to  require  the  commission  or  attempt  of  the  final 
offence. It remains uncertain whether the criminal liability of the participant requires certain 
degree of determination of the circumstances of the final offence and the identity of the co-
authors.  

The  aim  of  this  section  is  not  to  classify  Member  States  under  one  of  the  two  theories  and 
extract the conclusions from this sole basis. However, this background constitutes a relevant 
reference:  offering  a  general  idea  of  these  opposed  concepts  may  be  important  to  better 
understand the national provisions on participation and common commission of offences that 
will be explained below. 

c. National provisions implementing Article 4 

First  of  all,  we  will  examine  the  assessment  of  the  first  evaluation  report102.  While  going 
through the analysis of the different national provisions, two Member States stand out: Ireland 
and  Spain.  Ireland  not  only  provides  generally  that  any  person  who  aids,  abets,  counsels  or 
procures the commission of an indictable offence is liable to be indicted, tried and punished as 
a  principal  offender,  but  also  makes  it  an  offence  for  any  person  to  recruit,  incite  or  invite 
another person – or other persons generally - to join an unlawful organisation or to take part 
in, support or assist in its activities. Spain criminalises provocation in addition to instigation. 
Provocation is defined as public instigation and only applies if the offence is not committed.  

But,  although  it  is  interesting  to  note  the  existence  of  such  "parallel"  provisions,  the  report 
does  not  provide  for  any  hint  of  the  wider  or  narrower  scope  of  inciting,  aiding  or  abetting 
under  the  national  provisions.  The  table  annex  to  the  report  contains  however  relevant 
information, very often directing the reader to general provisions on participation. The study 
of  the  general  provisions  on  participation  together  with  the  examination  of  additional 
provisions  submitted  by  some  Member  States  in  view  of  the  elaboration  of  the  second 

101 
102 

See "Droit pénal comparé spécial, Dalloz, 2002, mentioned above, pp. 312-325. 
See The Commission Staff Working Paper annex to the Report from the Commission based on Article 
11 of the Council Framework Decision of 13 June 2002 on combating terrorism, pp. 18-19. 

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evaluation  report,  has  led  to  some  interesting  findings  irrespective  of  the  national  case-law, 
which, as explained above, is not examined for the elaboration of the reports. 

National  provisions  from  an  important  number  of  Member  States  explicitly  require 
participation  to  be  intentional  (Finland,  France,  Germany,  Latvia,  Lithuania,  Portugal  and 
Slovenia)  while  only  Sweden  foresees  the  possibility  of  negligent  participation.  Since  the 
concepts  of  transmission  of  terrorist  propaganda  and  terrorist  expertise  require  the  intent  of 
the author, national provisions would cover it in both cases.  

For  some  Member  States,  participation  is  made  punishable  only  when  the  offence  has  been 
started or attempted (as Portugal, Slovak Republic and Spain clarify). Such requirement limits 
the  scope  of  participation.  Other  Member  States  go  beyond  the  level  required  by  the 
Framework  Decision  by  making  the  attempt  of  incitement  punishable:  for  example  Italy  in 
Article  302  of  its  penal  code,  punishing  certain  intentional  serious  crimes,  amongst  them 
certain  terrorist  offences,  when  incitement  is  not  followed  by  an  agreement  or  by  the 
commission of the offence; Poland, making the attempt of incitement explicitly punishable in 
Article 18 of its criminal code and similarly Germany in Article 30 of its penal code. Sweden 
not only makes attempted incitement punishable but also attempted complicity in Chapter 23 
of  its  penal  code.  Similarly,  Austria  generally  incriminates  attempted  perpetration  and 
participation under Article 15(3) of its penal code. Finland also goes beyond the Framework 
Decision, although in another direction, by making instigation to participation punishable.  

It should also be noted that Article 115 of the Italian penal code incriminates the agreement of 
the co-operators to commit the offence, even if finally it is not committed. Under Articles 21 
and 23 of the Danish penal code it is clear that the participant is punished even if the offence 
is  not  carried  out,  and  Article  26  of  the  Slovenian  penal  code  explains  that  solicitation  is 
punished even if the offence is not attempted. Similarly, Latvian penal code clarifies that, if 
the perpetrator does not start the execution of the offence, the joint participants will be liable 
for preparation of the offence in question. 

Even if some Member States make the attempt to incite or participate punishable, it does not 
mean  necessarily  that  they  cover  most  of  the cases  of  dissemination of  terrorist  propaganda 
and  terrorist  expertise  through  the  Internet.  Cases  of  transmission  to  a  specific  recipient, 
addressed  as  a  possible  main  perpetrator  of  a  defined  offence  will  normally  be  covered. 
However,  it  is  doubtful  that  such  national  rules  cover  the  cases  that  represent  an  important 
part of this report: messages disseminated through a website or a chat-forum, where the main 
author and circumstances of the eventual offence are not determined.  

Finally, national provisions on public incitement, provocation or dissemination of propaganda 
of  a  general  nature  should  be  examined.  The  analysis  of  the  table  annexed  to  the  report 
together with the additional information sent in view of the elaboration of the second report 
reveal that not only Ireland and Spain have adopted this kind of provisions. For example, the 
Belgian  penal  code  refers  explicitly  to  the  case  of  "public  provocation"  under  Article  66, 
punishable  even  if  the  offence  is  not  perpetrated.  Section  164  of  the  Slovak  penal  code 
criminalises  "public  incitement".  France  refers  to  Articles  23  and  24  of  the  Law  on  the 
Freedom of the Press of 29 July 1881 which refers to direct provocation to commit terrorist 
offences or their apology through the press, the distribution of printed documents or drawings 
as  well  as  their  exhibition  in  public  places  and  their  distribution,  including  via  e-
communications, as well as through speeches or threats pronounced in public places. Finally 
the  Cypriot  Bill  Section  6  makes  the  possession  of  documents  with  seditious  content 
punishable and publication etc. of propaganda material of an unlawful organisation qualifies 

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as  a  terrorist  offence.  Germany  adopted  Article  129a,  paragraph  5,  of  its  Criminal  Code 
dealing with recruitment or propaganda in favour of a terrorist group.  

Some  of  these  provisions  specify  that  the  perpetration  of  the  offence  is  not  required  for  the 
behaviour  to  be  punishable.  The  common  point  in  all  these  provisions  is  that  they  punish 
publishing  a  message  addressed  to  a  large  audience.  They  therefore  appear  to  cover  the 
dissemination of terrorist propaganda and terrorist expertise through the Internet, even if the 
propaganda or expertise is accessible to anyone on a website. 

The variety of national rules on participation and common commission of offences, together 
with the existence of additional provisions which look very much the same as the former, with 
the difference that a message is addressed to a wide audience, may seem chaotic. Nonetheless, 
the analysis of the answers to the questionnaire under Section 3.1 will reveal the logic lying 
behind. At this stage, only the following conclusions can be formulated: 

Some  Member  States  go  beyond  the  Framework  Decision  by  making  the  attempt  to 
incite punishable. It is however doubtful that such national rules cover the dissemination 
of  terrorist  propaganda  and  terrorist  expertise  through  a  website  or  a  chat-forum, 
where  the  main  perpetrator  and  circumstances  of  the  eventual  offence  are  not 
determined.  It  seems  that,  in  order  to  punish  this  behaviour  under  national  law,  national 
conceptions  of  participation  and  incitement  should  not  require  that  the  eventual  perpetrator 
and the circumstances of the eventual offence are determined at the moment of the incitement 
or the participation.  

1.3. Additional national legislation 

In the consultation process referred to in Section 1, Member States were asked about national 
provisions,  in  addition  to  those  implementing  the  Framework  Decision,  that  may  apply  to 
transmission of terrorist propaganda and terrorist expertise through the media and the internet 
in particular103. Two Member States did not provide for any answer or answered very briefly 
because  of  their  undergoing  legislative  modification  in  view  of  the  ratification  of  the 
Convention  on  the  Prevention  of  Terrorism  of  the  Council  of  Europe104.  The  rest  of  the 
Member  States  save  one  included  different  provisions  to  those  submitted  in  view  of  the 
elaboration  of  the  evaluation  reports105.  Yet  many  combined  these  different  provisions  or 
envisaged  provisions  with  some  already  analysed  under  the  evaluation  reports.  As  we  have 
already commented on national provisions implementing the Framework Decision, the focus 
of this paragraph will be the complementary information provided for by Member States106.  

A first overview shows that every Member State but one have got or will have specific rules 
dealing  with  public  dissemination  of  messages  encouraging  the  commission  of  terrorist 
offences  (and  often  of  other  crimes).  Although  terminology  is  not  at  all  uniform  (i.e. 
"provocation",  "instigation",  "public  incitement"  etc.)  we  observe  that  there  is  a  reiterative 

103 

104 

105 

106 

See the questionnaire addressed to Member States in view of the eventual revision of the Framework 
Decision on combating terrorism and the compilation of their answers in Annex I. 
The  Convention  on  the  Prevention  of  Terrorism  will  be  analysed  under  a  section  dealing  with 
International instruments applicable to the dissemination of terrorist propaganda and terrorist expertise. 
It must be noted that some Member States answering the questionnaire were not evaluated in the first 
report nor did they submit the information in view of the elaboration of the second report. This is the 
case of Greece and, for obvious reasons, of Bulgaria and Romania, since the cut-off date taken to admit 
information on national implementation was 31 July 2006.  
For the full analysis of the answers from Member States, see Annex I. 

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characteristic: they explicitly refer to publicly disseminated information. Often, the provision 
makes  reference  to  oral  dissemination  in  a  meeting,  via  written  publications  or  audiovisual 
material.  Some  provisions  deal  specifically  with  "terrorist  publications",  including  even  a 
reference to dissemination via the Internet. In other cases, the comments of the Member States 
explain  that  messages  on  the  internet  are  included.  Two  Member  States  express  this 
characteristic  theoretically  by  saying  that  the  recipient  does  not  have  to  be  previously 
determined. Actually, these two Member States stress that, by contrast with the general rules 
on  incitement,  in  the  relevant  provisions  the  offence  does  not  need  to  be  determined 
beforehand either. In this sense, some Member States retain direct and indirect provocation. In 
five Member States, these provisions refer to the irrelevance of the subsequent commission of 
the offence or the actual incitement of the recipients of the message. 

Additionally, eight Member States have got or will have provisions 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.  

Three  Member  States  referred  to  provisions  explicitly  covering  the  public  dissemination  of 
terrorist  expertise.  Six  Member  States  have  got  or  will  have  provisions  on  training  or 
recruiting, mainly resulting from the adaptation of their legislation to the Council of Europe 
Convention  on  the  Prevention  of  Terrorism.  One  Member  State  refers  to  its  provision  on 
preparation of a crime, explaining that it comprises holding something especially intended to 
be  used  as  an  auxiliary  means  and  that  compiled  information  can  be  regarded  as  the  said 
auxiliary  means.  In  this  case  the  intent  does  not  have  to  cover  a  specific  terrorist  offence. 
Another Member State refers to its general rules on complicity. Three Member States explain 
that the transmission of  terrorist  expertise  is  criminalised  under the penal code  only if done 
intentionally and the terrorist act was actually committed or attempted/planned. Two Member 
State link the dissemination of terrorist expertise to terrorist groups, making the transmission 
information on terrorist targets punishable. One Member State clarifies that it has no specific 
provisions concerning the transmission of terrorism expertise in place. 

1.4 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.  

As  stated  above,  Article  4  does  not  include  the obligation  for  Member  States  to  ensure  that 
attempts  to  incite  others  to  commit  terrorist  offences  are  made  punishable.  Following  this 
reasoning, the provision only obliges Member States to incriminate incitement when at least 
one  of  the  recipients  of  the  message  is  actually  incited.  Under  this  interpretation,  Article  4 
does  not  require  Member  States  to  make  the  dissemination  of  messages  encouraging  the 
commission of terrorist offences via the Internet itself punishable. 

Furthermore,  concerning  public  dissemination  (the  case  of  messages  accessible  to  anyone), 
the  first  evaluation  report  on  the  national  implementation  of  Article  4  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 

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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.  

This provision does not require 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. Most Member States that replied to the questionnaire have got 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.  

Nevertheless, it is doubtful that many would cover general encouragement to join the Djihad, 
without  reference  to  a  specific  terrorist  offence.  However,  the  offences  on  recruitment 
introduced  by  some  Member  States  may  cover  such  messages,  at  least  when  they  are 
addressed  to  pre-selected  candidates.  These  messages,  when  associated  to  the  name  of  a 
certain  terrorist  group,  are  likely  to  be  covered  by  the  legislation  of  many  Member  States. 
Indeed,  as  it  has  been  explained  above,  numerous  Member  States  have  got  far-reaching 
provisions that implement Article 2 and might apply to the propaganda in favour of a terrorist 
group.  

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7. Few Member States have 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.  

Sweden,  through  very  far  reaching  concepts  of  preparation  and  participation  in  an  offence, 
would  at  least  cover  the  dissemination  of  expertise  to  pre-selected  candidates  and  the  same 
goes for the offences introduced by some Member States on training and instruction, mainly 
adopted in view of the ratification of the Council of Europe Convention on the Prevention of 
Terrorism. 

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 seems to stay 
behind. Furthermore, the European instrument already appears to be out-dated in the 
international context, where the Council of Europe107 and the United Nations108 have set 
the basis for further reaching national legislation. 

2. Other instruments: The Television without frontiers Directive109, the Directive on electronic 
commerce110 and the Data retention Directive111. 

The Television without frontiers Directive aims to ensure the free movement of broadcasting 
services  within  the  internal  market  and  at  the  same  time  to  preserve  certain  public  interest 
objectives,  such  as  cultural  diversity,  the  right  of  reply,  consumer  protection  and  the 
protection  of  minors.  It  is  also  intended  to  promote  the  distribution  and  production  of 
European  audiovisual  programmes,  for  example  by  ensuring  that  they  are  given  a  majority 
position in television channels' programme schedules. 

The Directive prohibits incitement to hatred on grounds of race, sex, religion or nationality in 
broadcast.  This  includes  third  country  programmes  (mostly  satellite  television)  if  they  use 
either  a  frequency,  satellite  capacity  or  an  uplink  appertaining  to  a  Member  State.  Member 
States  are  responsible  for  the  implementation  of  these  rules  and,  as  noted  in  the 
Communication  on  Radicalisation  and  Recruitment,  cases  of  prohibition  to  retransmit 
channels like al-Manar or Sahar-1 within Europe show that the effective application of these 
rules works quite well.  

107 
108 

109 

110 

111 

the  Secretary-General  of 

the  United  Nations  "Uniting  against 

See the Council of Europe Convention on the Prevention of Terrorism, mentioned above. 
The  Report  of 
terrorism: 
recommendations for a global counter-terrorism strategy", interprets Security Council Resolution 1624 
(2005)  as  providing  for  a  basis  for  the  criminalization  of  incitement  to  terrorist  acts  and  recruitment, 
including through the Internet. 
Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council 
Directive  89/552/EEC  on  the  coordination  of  certain  provisions  laid  down  by  law,  regulation  or 
administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 
L 202, 30.7.1997, p. 60). 
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal 
aspects  of  information  society  services,  in  particular  electronic  commerce,  in  the  Internal  Market 
('Directive on electronic commerce') (OJ L 178, 17.7.2000, p. 1). 
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention 
of  data  generated  or  processed  in  connection  with  the  provision  of  publicly  available  electronic 
communications services or of public communications networks and amending Directive 2002/58/EC. 

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The  Directive  was  amended  in  1997  for  the  first  time.  In  December  2005,  the  Commission 
published  a  proposal  for  revision  of  the  Directive,  aimed  at  modernising  the  existing  rules, 
which is still under discussion in the Parliament and the Council.  

Additionally, it should be noted that the revision of the Directive underway would broaden its 
scope so that the instrument would cover certain content transmitted through the Internet. The 
Directive  would  apply  to  the  delivery  of  moving  images  with  or  without  sound,  in  order  to 
inform,  entertain  or  educate,  to  the  general  public,  also  when  transmitted  by  electronic 
communication networks provided that the audiovisual content is not merely incidental to the 
service but its principal purpose.  

It  seems  that  messages  disseminating  terrorist  propaganda  and  terrorist  expertise  will  be,  at 
least  in  some  cases,  covered  by  the  prohibition  of  incitement  to  hatred.  Therefore,  the 
prohibition of the television without frontiers would apply to the content under examination. 
Nevertheless, the Directive will not be applicable to all content disseminated via the Internet 
even  after  its  revision  nor,  obviously,  does  it  allow  for  the  prosecution  of  the  person 
responsible for the dissemination of terrorist propaganda and terrorist expertise. 

The  Directive  on  electronic  commerce  seeks  to  contribute  to  the  proper  functioning  of  the 
internal  market  by  ensuring  the  free  movement  of  information  society  services  between  the 
Member States. To this end, it approximates certain national provisions, including rules on the 
liability of intermediaries.  

In  particular,  under  Article  12,  service  providers  are  broadly  exempted  from  liability 
regarding the information they transmit or give access to ("mere conduit"). Articles 13 and 14 
deal, respectively, with their liability as intermediates that automatically and temporarily store 
information  ("caching")  or  that  store  it  at  the  request  of  the  recipient  of  the  service 
("hosting"). In these cases, they are not liable unless they have actual knowledge of the illegal 
activity or information. Such exemptions, though, do not affect the possibility for a court or 
administrative  authority,  in  accordance  with  Member  States'  legal  systems,  of  requiring  the 
service  provider  to  terminate  or  prevent  an  infringement,  including  the  removal  of  illegal 
information or the disabling of access to it. 

Additionally,  Member  States  shall  not  impose  a  general  obligation  on  providers,  when 
providing the services covered by Articles 12, 13 and 14,  to monitor the  information which 
they transmit or store or a general obligation actively to seek facts or circumstances indicating 
illegal activity. Nonetheless, the provision states that Member States may establish obligations 
for  service  providers  promptly  to  inform  the  competent  public  authorities  of  alleged  illegal 
activities undertaken or information  provided by  recipients  of their service  or obligations to 
communicate  to  the  competent  authorities,  at  their  request,  information  enabling  the 
identification of recipients of their service with whom they have storage agreements. 

This liability regime is important from the point of view of the fight against terrorism. Firstly, 
it allows for co-operation with law enforcement authorities so that Member States can require 
service providers to provide law enforcement authorities with certain data which might be of 
utmost importance in the investigation of terrorist cases. Furthermore, this regime allows for 
"notice and take down" procedures, by which the service providers storing illegal content can 
become liable when they do not remove illegal information after they are given notice of its 
presence. In order to be able to benefit from this liability regime as regards the dissemination 
of terrorist propaganda and terrorist expertise through the Internet is qualifying this behaviour 
as illegal. Its application does not require that the behaviour is made punishable. Forbidding 

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the  dissemination  of  terrorist  propaganda  and  terrorist  expertise  suffices.  So,  even  if  the 
dissemination of terrorist propaganda and terrorist expertise is not incriminated, the liability 
regime  would  apply  if  non-criminal  law  in  Member  States  forbids  this  behaviour.  Few 
Member States, however, seem to have relevant legislation in this sense112. Once again, even 
if  the  Directive  on  electronic  commerce  applies,  it  obviously  does  not  allow  for  the 
prosecution of the responsible behind the dissemination of terrorist propaganda and terrorist 
expertise. 

The Directive on data retention aims to harmonise Member States' provisions concerning the 
obligations  of  the  providers  of  publicly  available  electronic  communications  services  or  of 
public  communications  networks  with  respect  to  the  retention  of  certain  data  which  are 
generated or processed by them, in order to ensure that the data are available for the purpose 
of the investigation, detection and prosecution of serious crime, as defined by each Member 
State  in  its  national  law.  It  is  important  to  note  that  this  instrument  does  not  apply  to  the 
content  of  electronic  communications,  including  information  consulted  using  an  electronic 
communications  network.  It  applies  to  traffic  and  location  data  on  both  legal  entities  and 
natural persons and to the related data necessary to identify the subscriber or registered user.  

If the dissemination of terrorist propaganda and terrorist expertise through the Internet were 
qualified as serious crimes, public authorities could be assisted in the detection, investigation 
and prosecution of these forms of behaviour by the providers referred to above, to which they 
could request traffic and location data, crucial to identify the responsible individuals behind 
such dissemination. 

Therefore, it can be concluded that: 

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 its content. 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 content 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. 

3.  The  Data  retention  Directive  allows  law  enforcement  authorities  to  request  internet 
service  providers  to  provide  location  and  traffic  data.  Nevertheless,  the  data  retention 
Directive only applies to serious crimes. It follows that the partial lack of incrimination of the 
dissemination of terrorist propaganda and terrorist expertise by many Member States excludes 
the request of data from service providers in the field of criminal law.  

112 

See Annex I. 

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106 

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107 

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