COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Tackling Illegal Content Online Towards an enhanced responsibility of online platforms
Date: 2017-09-28
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, access to information, consumer protection, crime, cross-border cooperation, digital technology, dissemination of information, electronic commerce, information, provision of services

1. 

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 28.9.2017  COM(2017) 555 final   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Tackling Illegal Content Online Towards an enhanced responsibility of online platforms  
 
 
1. 

INTRODUCTION 

Online platforms are important drivers of innovation and growth in the digital economy. They have 
information  and  exchanges  as  well  as  new  market 
enabled  an  unprecedented  access  to 
opportunities, notably for small and medium-sized enterprises (SMEs). Online platforms also provide 
the main access point to information and other content for most people on the internet today, be it 
through  search  engines,  social  networks,  micro-blogging  sites,  or  video-sharing  platforms.  The 
business  models  of  platforms  have  also  evolved  recently  towards  closer  links  between  users  and 
content  –  notably  for  targeted  advertisement.  These  platforms  connect  billions  of  users  with  vast 
quantities of content and information1 and provide innovative services to citizens and business.  

However, the important spread of illegal content that can be uploaded and therefore accessed online 
raises serious concerns that need forceful and effective replies. What is illegal offline is also illegal 
online.  Incitement  to  terrorism,  xenophobic  and  racist  speech  that  publicly  incites  hatred  and 
violence,  as  well  as  child  sexual  abuse  material  are  illegal  in  the  EU.  The  increasing  availability  of 
terrorist material online and the spreading of such content is a serious threat to security and safety, 
as well as to the dignity of victims. The European Union has responded to these concerns through a 
certain  number  of  measures2.  However,  addressing  the  detection  and  removal  of  illegal  content 
online represents an urgent challenge for the digital society today.   

Concerned  by  series  of  terrorist  attacks  in  the  EU  and  proliferation  of  online  terrorist  propaganda, 
the  European  Council  of  22-23  June  2017  stated  that  it  "expects  industry  to  …  develop  new 
technology  and  tools  to  improve  the  automatic  detection  and  removal  of  content  that  incites  to 
terrorist  acts.  This  should  be  complemented  by  the  relevant  legislative  measures  at  EU  level,  if 
necessary". These calls were echoed by statements issued by the leaders of the G7 and G20 at their 
recent  summits3.  Similarly,  the  European  Parliament,  in  its  resolution  on  Online  Platforms  of  June 
2017  urged  these  platforms  "to  strengthen  measures  to  tackle  illegal  and  harmful  content",  while 
calling on the Commission to present proposals to address these issues4.  

Those online platforms which mediate access  to content for most internet users carry a significant 
societal responsibility in terms of protecting users and society at large and preventing criminals and 
other persons involved in infringing activities online from exploiting their services. The open digital 
spaces they provide must not become breeding grounds for, for instance, terror, illegal hate speech, 
child  abuse  or  trafficking  of  human  beings,  or  spaces  that  escape  the  rule  of  law.  Clearly,  the 
spreading  of  illegal  content  online  can  undermine  citizens'  trust  and  confidence  in  the  digital 
environment, but it could also threaten the further economic development of platform ecosystems 
and the Digital Single Market. Online platforms should decisively step up their actions to address this 
problem, as part of the responsibility which flows from their central role in society. 

1 At  present,  every  second  around  8,000  tweets  are  posted  on  Twitter,  1,000  photos  are  posted  on  Instagram,  60,000 
Google searches are performed, and 70,000 YouTube videos are viewed. See http://www.internetlivestats.com/ 
2 See section 2. 
3 European  Council  Conclusions,  ST  8  2017  INIT,  22  and  23  June  2017,  G7  Taormina  Statement,  26  May  2017,  and  G20 
leaders declaration , 8 July 2017 
4 European Parliament resolution 15 June 2017 on online platforms (2016/2274(INI)) 

2 

 
                                                 
 
The  fight  against  illegal  content  online  must  be  carried  out  with  proper  and  robust  safeguards  to 
ensure  protection  of  the  different  fundamental  rights  at  stake.  Given  their  increasingly  important 
role in providing access to information, online platforms also have a key role to play in achieving such 
a  balance.  The  fight  against  illegal  content  online  within  the  EU  should  build  on  and  also  take  into 
account EU actions at global level. 

This  Communication  lays  down  a  set  of  guidelines  and  principles  for  online  platforms  to  step  up 
the  fight  against  illegal  content  online5 in  cooperation  with  national  authorities,  Member  States 
and  other  relevant  stakeholders.  It  aims  to  facilitate  and  intensify  the  implementation  of  good 
practices for preventing, detecting, removing and disabling access to illegal content so as to ensure 
the  effective  removal of illegal content, increased transparency and  the protection of fundamental 
rights  online.  It  also  aims  to  provide  clarifications  to  platforms  on  their  liability  when  they  take 
proactive steps to detect, remove or disable access to illegal content (the so-called "Good Samaritan" 
actions). 

2. 

CONTEXT 

The European Union has already responded to the challenge of illegal content online, through both 
binding  and  non-binding  measures.  These  policy  responses  include  the  Directive  to  combat  the 
sexual abuse and sexual exploitation of children and child pornography6, the Terrorism Directive7, 
the  proposed  measures  in  the  context  of  the  reforms  of  copyright8 and  the  Audiovisual  Media 
Services Directive (AVMSD)9. 

These  existing  and  proposed  legislative  measures  have  been  complemented  by  a  range  of  non-
legislative  measures,  such  as  the  Code  of  Conduct  on  Countering  Illegal  Hate  Speech  Online10,  the 
work  of  the  EU  Internet  Forum 11  as  regards  terrorist  propaganda,  the  Memorandum  of 
Understanding  on  the  sale  of  Counterfeit  Goods 12,  the  Commission  Notice  on  the  market 
surveillance of products sold online13, online sale of food chain products, the EU Action Plan against 
Wildlife  Trafficking14,  the  Guidance  on  the  Unfair  Commercial  Practices  Directive15 or  the  joint 

5 The  elements  presented  here  have  been  informed  by  a  broad  series  of  public  as  well  as  targeted  consultations  and 
stakeholder workshops.  
6 See the recent Report from the Commission to the European Parliament and the Council assessing the implementation of 
the measures referred to in Article 25 of Directive 2011/93/EU of 13 December 2011 on combating the sexual abuse and 
sexual exploitation of children and child pornography.  
7 Terrorism Directive (EU) 2017/541 obliges Member States to take the necessary measures to ensure the prompt removal 
of  online  content  inciting  to  commit  terrorist  acts  (Article  21).  In  this  area,  in  the  context  of  the  EU  Internet  Forum, 
platforms remove voluntarily terrorist content on the basis of referrals sent by the Europol Internet Referral Unit (IRU). 
8 COM(2016) 593 
9 COM(2016) 287 
10 http://ec.europa.eu/justice/fundamental-rights/files/hate_speech_code_of_conduct_en.pdf 
11 http://europa.eu/rapid/press-release_IP-15-6243_en.htm 
12 http://ec.europa.eu/transparency/regdoc/rep/3/2016/EN/3-2016-3724-EN-F1-1.PDF 
13 JO C 250 of 1.8.2017 
14 http://ec.europa.eu/environment/cites/pdf/WAP_EN_WEB.pdf  
15 SWD(2016)163 of 25.5.2016 

3 

 
                                                 
actions  of  the  national  authorities  within  the  Consumer  Protection  Cooperation  Network16.  The 
European Strategy for a Better Internet for Children17 is a self-regulatory initiative aiming to improve 
the online environment for children and young people, given the risks of exposure to material such 
as violent or sexually exploitative content, or cyberbullying. 

In its Communications of 2016 and 201718, the Commission stressed the need for online platforms to 
act  more  responsibly  and  step  up  EU-wide  self-regulatory  efforts  to  remove  illegal  content.  In 
addition, the Commission also committed to improve the coordination of the various sector-specific 
dialogues  with  platforms  and  to  explore  the  need  for  guidance  on  formal  notice-and-action 
procedures.  This  should  be  done  in  synergy  with,  and  without  prejudice  to,  dialogues  already 
ongoing and work launched in other areas, such as under the European Agenda on Security or in the 
area of illegal hate speech. 

Recent reports on some of these sector specific initiatives have shown some progress. For the case of 
illegal hate speech, reports from June 2017 indicated an increase of removals from 28 percent to 59 
percent  of  a  sample  of  notified  content  across  some  EU  countries  over  a  six  months  period,  but 
noting important differences across platforms19. Some improvements in the speed of removal were 
also recorded over the same period while still 28 percent of removals took place only after a week20. 
This  shows  that  a  non-regulatory  approach  may  produce  some  results  in  particular  when  flanked 
with  measures  to  ensuring  the  facilitation  of  cooperation  between  all  the  operators  concerned.  In 
the framework of the EU Internet Forum tackling terrorist content, approximately 80-90 percent of 
content  flagged  by  Europol  has  been  removed  since  its  inception21.  In  the  context  of  child  sexual 
abuse material, the INHOPE system of hotlines reported already in 2015 removal efficiencies of 91% 
within 72 hours, with 1 out of 3 content items being removed within 24 hours22.  

The  various  ongoing  sector-specific  dialogues  also  revealed  a  significant  amount  of  similarity 
concerning  the  procedures  that  govern  the  detection,  identification,  removal  and  re-upload 
prevention across the different sectors. These findings have informed the present Communication.  

At EU level, the general legal framework for illegal content removal is the E-Commerce Directive23, 
which inter alia harmonises the conditions under which certain online platforms can benefit from the 
exception from liability for illegal content which they host across the Digital Single Market.  

Illegal  content  on  online  platforms  can  proliferate  especially  through  online  services  that  allow 
upload  of  third  party  content.  Such  ‘hosting’  services  are,  under  certain  conditions,  covered  by 

final 

16 http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/consumer_protection_cooperation
_network/index_en.htm 
17  Communication  COM(2012)  196 
market/en/alliance-better-protect-minors-online  
18 COM(2016)288 and COM(2017)228. 
19 http://europa.eu/rapid/press-release_IP-17-1471_en.htm  
20 http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=71674 
21 http://europa.eu/rapid/press-release_IP-17-544_en.htm. 
22 http://www.inhope.org/Libraries/Annual_reports/INHOPE_Annual_Report_2015.sflb.ashx?download=true 
23 E-Commerce Directive 2000/31/EC of 8 June 2000. 

(BIK)):  https://ec.europa.eu/digital-single-

for  Kids 

Internet 

(Better 

4 

 
                                                 
Article  14  of  the  E-Commerce  Directive24.  This  article  establishes  that  hosting  service  providers25 
cannot be held liable for the information stored at the request of third parties, on condition that (a) 
they  do  not  have  actual  knowledge  of  the  illegal  activity  or  information  and,  as  regards  claims  for 
damages,  is  not  aware  of  facts  or  circumstances  from  which  the  illegal  activity  or  information  is 
apparent or (b), upon obtaining such knowledge or awareness, they act expeditiously to remove or 
to  disable  access  to  the  information.  At  the  same  time,  the  Directive  should  "constitute  the 
appropriate basis for the development of rapid and reliable procedures for removing and disabling 
access to illegal information"26.  

Moreover,  Article  15  prohibits  Member  States  from  imposing  "a  general  obligation  on  providers, 
when providing the services covered by [Article 14], to monitor the information which they transmit 
or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity." At 
the same time, Recital 47 of the Directive recalls that this only concerns monitoring obligations of a 
general  nature  and  'does  not  automatically  cover  monitoring  obligations  in  a  specific  case  and,  in 
particular, does not affect orders by national authorities in accordance with national legislation." 

In this context, in its 2016 Communication on online platforms, the Commission committed itself to 
maintaining  a  balanced  and  predictable  liability  regime  for  online  platforms,  as  a  key  regulatory 
framework supporting digital innovation across the Digital Single Market. 

The guidance in this Communication is without prejudice to EU acquis and relates to the activities of 
online  platforms,  and  in  particular  hosting  services  provided  by  these  platforms27 in  the  sense  of 
Article 14 of the E-Commerce Directive, and covers all categories of illegal content while duly taking 
account of the fact that different types of content may require different treatment. 

A harmonised and coherent approach to removing illegal content does not exist at present in the EU. 
Indeed, different approaches exist in the EU depending on Member States, content category, or type 
of  online  platform.  A  more  aligned  approach  would  make  the  fight  against  illegal  content  more 
effective. It would also benefit the development of the Digital Single Market and reduce the cost of 
compliance with a multitude of rules for online platforms, including for new entrants. 

It  is  important  to  stress  that  this  legal  framework  does  not  define,  let  alone  harmonise,  what 
constitutes "illegal" content. What is illegal is determined by specific legislation at the EU level, as 

24 It  should  be  noted  that,  under  the  E-Commerce  Directive,  only  those  providers  of  information  society  services  benefit 
from  the  liability  exemption  of  Articles  12-14  that  qualify  as  intermediary  service  providers  (i.e.  providing  mere  conduit, 
caching or hosting services, respectively). Recital 42 clarifies that, for activities to be covered by the liability exemption they 
must be "of a mere technical, automatic and passive nature, which implies that the information society service provider has 
neither knowledge of nor control over the information which is transmitted or stored." 
25 Most online platforms offer hosting services of content uploaded by their users. 
26 Recital 40 of the E-Commerce Directive. Note that this Communication focuses on hosting service providers, rather than 
mere conduits (Article 12) or caching service providers (Article 13).  
27 A hosting service is an information society service consisting of the storage of information provided by a recipient of the 
service.  This  category  can  cover  a  variety  of  actors,  from  online  marketplaces,  video-sharing  platforms,  social  networks, 
blogging websites or review websites, to users' comments' sections in news pages. 

5 

 
                                                 
well  as  by  national  law.28 While,  for  instance,  the  nature,  characteristics  and  harm  connected  to 
terrorism-related  material,  illegal  hate  speech  or  child  sexual  abuse  material  or  those  related  to 
trafficking in human beings are very different from violations of intellectual property rights, product 
safety rules, illegal commercial practices online, or online activities of a defamatory nature, all these 
different  types  of  illegal  content  fall  under  the  same  overarching  legal  framework  set  by  the  E-
Commerce  Directive.  In  addition,  given  the  significant  similarities  in  the  removal  process  for  these 
different content types, this Communication covers the whole range of illegal content online, while 
allowing for sector-specific differences where appropriate and justified. 

In  the  EU,  courts  and  national  competent  authorities,  including  law  enforcement  authorities,  are 
competent  to  prosecute  crimes  and  impose  criminal  sanctions  under  due  process  relating  to  the 
illegality of a given activity or information online. At the same time, online platforms are entitled to 
prevent  that  their  infrastructure  and  business  is  used  to  commit  crimes,  have  a  responsibility  to 
protect  their  users and prevent illegal  content on their  platform, and are typically in possession of 
technical  means  to  identify  and  remove  such  content.  This  is  all  the  more  important  that  online 
platforms  have  invested  massively  to  develop  elaborated  technologies  to  proactively  collect 
information on content circulated on their premises and on users' behaviour. While swift decisions 
concerning  the  removal  of  illegal  content  are  important,  there  is  also  a  need  to  apply  adequate 
safeguards. This also requires a balance of roles between public and private bodies. 

The  guidelines  and  principles  set  out  in  this  Communication  therefore  do  not  only  target  the 
detection and removal of illegal content; they also seek to address concerns in relation to removal of 
legal  content,  sometimes  called  ‘over-removal’,  which  in  turn  impacts  freedom  of  expression  and 
media  pluralism.  Adequate  safeguards  should  therefore  be  foreseen,  and  adapted  to  the  specific 
type of illegal content concerned. 

There  are  undoubtedly  public  interest  concerns  around  content  which  is  not  necessarily  illegal  but 
potentially harmful, such as fake news or content that is harmful for minors29. However, the focus of 
this Communication is on the detection and removal of illegal content. 

3. 

DETECTING AND NOTIFYING ILLEGAL CONTENT  

The objective of this section is to set out what online platforms, competent authorities and users 
should do in order to detect illegal content quickly and efficiently. 

Online  platforms  may  become  aware  of  the  existence  of  illegal  content  in  a  number  of  different 
ways,  through  different  channels.  Such  channels  for  notifications  include  (i)  court  orders  or 
administrative  decisions;  (ii)  notices  from  competent  authorities  (e.g.  law  enforcement  bodies), 

28 Examples of areas that are covered (or proposed) under EU law include incitement to terrorism, illegal hate speech, child 
sexual  abuse,  intellectual  property  rights,  product  safety,  offer  and  sales  of  food  or  tobacco  products  and  counterfeit 
medicines,  consumer  protection  rules  or  product  safety  measures,  etc.  In  2016,  the  Commission  also  clarified  online 
platforms' transparency and professional diligence obligations under Directive 2005/29/EC on unfair commercial practices 
where platforms act as traders vis-à-vis consumers.  
29 The  proposal  for  a  revision  of  the  Audio-visual  Media  Services  Directive  addresses  this  in  the  context  of  audio-visual 
content. 

6 

 
                                                 
specialised  "trusted  flaggers",  intellectual  property  rights  holders  or  ordinary  users,  or  (iii)  through 
the platforms' own investigations or knowledge.  

In addition to legal obligations derived from EU and national law and their ‘duty of care’, as part of 
their responsibilities, online platforms should ensure a safe online environment for users, hostile to 
criminal  and  other  illegal  exploitation,  and  which  deters  as  well  as  prevents  criminal  and  other 
infringing activities online.  

3.1. 

Courts and competent authorities 

In  accordance  with  EU  and/or  national  law,  national  courts  and,  in  certain  cases,  competent 
authorities  can  issue  binding  orders  or  administrative  decisions  addressed  to  online  platforms 
requiring them to remove or block access to illegal content.30  

Given that fast removal of illegal material is often essential in order to limit wider dissemination and 
harm,  online  platforms  should  also  be  able  to  take  swift  decisions  as  regards  possible  actions  with 
respect  to  illegal  content  online  without  being  required  to  do  so  on  the  basis  of  a  court  order  or 
administrative decision, especially where a law enforcement authority identifies and informs them of 
allegedly illegal content. At the same time, online platforms should put in place adequate safeguards 
when  giving  effect  to  their  responsibilities  in  this  regard,  in  order  to  guarantee  users'  right  of 
effective remedy.  

Online platforms should therefore have the necessary resources to understand the legal frameworks 
in  which  they  operate.  They  should  also  cooperate  closely  with  law  enforcement  and  other 
competent  authorities  where  appropriate,  notably  by  ensuring  that  they  can  be  rapidly  and 
effectively contacted for requests to remove illegal content expeditiously and also in order to, where 
appropriate, alert law enforcement to signs of online criminal activity31. To avoid duplication of effort 
and  notices  and  thus  reduce  the  efficiency  and  effectiveness  of  the  removal  process,  law 
enforcement and other competent authorities should also make every effort to cooperate with one 
another  in  the  definition  of  effective  digital  interfaces  which  facilitate  the  fast  and  reliable 
submission  of  notification  and  to  ensure  efficient  identification  and  reporting  of  illegal  content. 
Establishing points of contact by platforms and authorities is key for the proper functioning of such 
cooperation.  

30 Article  14(3)  of  the  E-Commerce  Directive  clarifies  that  Article  14  "shall  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." For example, Directive 2004/48/EC on the enforcement of intellectual property rights stipulates 
in its Article 11 that "Member States shall also ensure that rightholders are in a position to apply for an injunction against 
intermediaries  whose  services  are  used  by  a  third  party  to  infringe  an  intellectual  property  right,  without  prejudice  to 
Article 8(3) of Directive 2001/29/EC" 
31 Article  15(2)  of  the  E-Commerce  Directive  establishes  that  "Member  States  may  establish  obligations  for  information 
society  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." 

7 

 
 
                                                 
For terrorist content32, an EU Internet Referral Unit (IRU) has been established at Europol, whereby 
security  experts  assess  and  refer  terrorist  content  to  online  platform  (while  some  Member  States 
have their own national IRUs).  

Online  platforms  should  systematically  enhance  their  cooperation  with  competent  authorities  in 
Member  States,  while  Member  States  should  ensure  that  courts  are  able  to  effectively  react 
against illegal content online, as well as stronger (cross-border) cooperation between authorities. 

Online  platforms  and  law  enforcement  or  other  competent  authorities  should  appoint  effective 
points  of  contact  in  the  EU,  and  where  appropriate  define  effective  digital  interfaces  to  facilitate 
their interaction.  

Platforms and law enforcement authorities are also encouraged to develop technical interfaces that 
allow them to cooperate more effectively in the entire content governance cycle. Cooperation also 
with the technical community can be beneficial in advancing towards effective and technically sound 
solutions to this challenge. 

3.2. 

Notices 

3.2.1. 

Trusted flaggers 

The removal of illegal content online happens more quickly and reliably where online platforms put 
in  place  mechanisms  to  facilitate  a  privileged  channel  for  those  notice  providers  which  offer 
particular expertise in notifying the presence of potentially illegal content on their website. These are 
so-called  "trusted  flaggers",  as  specialised  entities  with  specific  expertise  in  identifying  illegal 
content, and dedicated structures for detecting and identifying such content online.  

Compared  to  ordinary  users,  trusted  flaggers  can  be  expected  to  bring  their  expertise  and  work 
with  high  quality  standards,  which  should  result  in  higher  quality  notices  and  faster  take-downs. 
Online platforms are encouraged to make use of existing networks of trusted flaggers. For instance, 
for  terrorist  content,  the  Europol's  Internet  Referral  Unit  has  the  necessary  expertise  to  assess 
whether  a  given  content  constitutes  terrorist  and  violent  extremist  online  content,  and  uses  this 
expertise  to  act  as  a  trusted  flagger,  besides  its  law  enforcement  role.  The  INHOPE  network  of 
hotlines for reporting child sexual abuse material is another example of a trusted flagger; for illegal 
hate  speech  content,  civil  society  organisations  or  semi-public  bodies  are  specialised  in  the 
identification and reporting of illegal online racist and xenophobic content.  

In  order  to  ensure  a  high  quality  of  notices  and  faster  removal  of  illegal  content,  criteria  based 
notably  on  respect  for  fundamental  rights  and  of  democratic  values  could  be  agreed  by  the 
industry  at  EU  level.  This  can  be  done  through  self-regulatory  mechanisms  or  within  the  EU 
standardisation  framework,  under  which  a  particular  entity  can  be  considered  a  trusted  flagger, 
allowing for sufficient flexibility to take account of content-specific characteristics and the role of the 
trusted flagger. Other such criteria could include internal training standards, process standards and 

32 In the sense of Article 5 of Directive (EU) 2017/541 on combating terrorism. 

8 

 
                                                 
quality  assurance,  as  well  as  legal  safeguards  as  regards  independence,  conflicts  of  interest, 
protection  of  privacy  and  personal  data,  as  a  non-exhaustive  list.  These  safeguards  are  particularly 
important  in  the  limited  number  of  cases  where  platforms  may  remove  content  upon  notification 
from  the  trusted  flagger  without  further  verifying  the  legality  of  the  content  themselves.  In  these 
limited cases, trusted flaggers could also be made auditable against these criteria, and a certification 
scheme  could  attest  the  trusted  status.  In  all  cases,  sufficient  safeguards  should  be  available  to 
prevent abuse of the system, as outlined in section 4.3. 

Competent authorities should be offered the possibility to participate in the trusted-flagger reporting 
mechanisms, where relevant.  

A  reasonable  balance  needs  to  be  struck  between  ensuring  a  high  quality  of  notices  coming  from 
trusted flaggers, the scope of additional measures that companies would take in relation to trusted 
flaggers  and  the  burden  in  ensuring  these  quality  standards.  Where  there  are  abuses  of  trusted 
flagger mechanisms against established standards, the privilege of a trusted flagger status should be 
removed. 

The Commission encourages the close cooperation between online platforms and trusted flaggers. 
Notices from trusted flaggers should be able to be fast-tracked by the platform. This cooperation 
should provide for mutual information exchange so as to evaluate and improve the removal process 
over time. 

The  Commission  will  further  explore,  in  particular  in  dialogues  with  the  relevant  stakeholders,  the 
potential of agreeing EU-wide criteria for trusted flaggers. 

3.2.2. 

Notices by users 

In  the  effective  fight  against  illegal  content  online,  ordinary  users  should  be  empowered  to  signal 
illegal content to online platforms and have confidence that justified notices will be considered and 
acted upon swiftly. 

Online  platforms  should  establish  an  easily  accessible  and  user-friendly  mechanism  that  allows 
their users to notify content considered to be illegal and which the platforms host.  

Where the content is publicly available, such reporting mechanisms should also be available to the 
general public, without needing to be signed-in as a user. To improve the efficiency and accuracy of 
the assessment of potentially illegal content, such mechanism should allow for easy notification by 
electronic means.  

The Commission's proposal on the revision of the Audiovisual Media Services Directive aims to create 
an obligation on video-sharing platform providers to establish and operate mechanisms for users to 
report or flag audio-visual content which may impair the physical, mental or moral development of 
minors, as well as content containing incitement to violence or hatred.  

3.2.3. 

Ensuring the high quality of notices 

Online platforms should put  in  place  effective  mechanisms  to  facilitate  the  submission  of  notices 
that  are  sufficiently  precise  and  adequately  substantiated  to enable the  platforms to take a swift 

9 

 
and informed decision about the follow-up. This should facilitate the provision of notices that contain 
an  explanation  of  the  reasons  why  the  notice  provider  considers  the  content  illegal  and  a  clear 
indication of the location of the potentially illegal content (e.g. the URL address). 

Such  reporting  mechanisms  should  be  visible,  easily  accessible,  user-friendly  and  contextual.  They 
should  also  allow  for  easy  reporting  of  different  content  types,  e.g.  by  selection  from  a  list  of 
categories  of  reasons  for  which  the  content  is  considered  illegal.  Where  technically  feasible, 
elements such as allowing notifications to be made immediately in the context of first encounter of 
the material or offering the reuse of sign-in credentials can be used.  

Such sufficiently substantiated and detailed notice enables the platform to find the potentially illegal 
content  quickly,  make  a  sound  assessment  of  the  illegality  of  the  content,  and  act  expeditiously 
where  appropriate.  The  exact  level  of  detail  required  by  platforms  to  expeditiously  take  informed 
decisions can vary considerably from one type of content to the other. 

Users  should  normally  not  be  obliged  to  identify  themselves  when  reporting  what  they  consider 
illegal  content,  unless  this  information  is  required  to  determine  the  legality  of  the  content  (e.g., 
asserting  ownership  for  intellectual  property  rights  (IPR)).  This  is  especially  the  case  where  their 
safety can be at risk or where revealing one's identity could have legal implications. Users should be 
encouraged to raise their notification via trusted flaggers, where these exist, whenever they wish to 
maintain anonymity vis-à-vis platforms. 

However, notice providers should have the opportunity to voluntarily submit their contact details 
in a notification, in order to allow the online platform to ask for additional information or to inform 
the notice provider about any intended follow-up. In that case, the notice provider should receive a 
confirmation of receipt and a communication indicating the follow-up given to the notification.  

A confirmation of receipt does not only avoid that the notice provider has to check whether his/her 
request  has  been  followed-up  on,  but  can  also  serve  as  evidence  in  judicial  or  out-of-court 
proceedings in accordance with the rules applicable to such proceedings. 

3.3. 

Proactive measures by online platforms 

3.3.1. 

Proactive measures and the liability exemption 

Online  platforms  should,  in  light  of  their  central  role  and  capabilities  and  their  associated 
responsibilities, adopt effective proactive measures to detect and remove illegal content online and 
not only limit themselves to reacting to notices which they receive.  Moreover, for certain categories 
of illegal content, it may not be possible to fully achieve the aim of reducing the risk of serious harm 
without platforms taking such proactive measures. 

The  Commission  considers  that  taking  such  voluntary,  proactive  measures  does  not  automatically 
lead to the online platform losing the benefit of the liability exemption provided for in Article 14 of 
the E-Commerce Directive.  

Firstly,  this  liability  exemption  is  only  available  to  providers  of  ‘hosting’  services  who  meet  the 
conditions  set  out  in  Article  14  of  that  Directive;  such  service  providers  are  those  whose  activities 

10 

 
consist of the storage of information at the request of third parties and which do not play an active 
role of such a kind as to give it knowledge of, or control over, that information.33  

Recital 38 of the Commission’s proposal for a Directive on copyright in the Digital Single Market of 14 
September  2016  states  in  this  regard:  "In  respect  of  Article  14  [of  the  E-Commerce  Directive],  it  is 
necessary  to  verify  whether  the  service  provider  plays  an  active  role,  including  by  optimising  the 
presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature 
of means used therefore". 

Specifically in respect of Article 14 of the E-Commerce Directive, in the case L'Oréal v eBay, the Court 
of Justice clarified that “the mere fact that [an online platform] stores offers for sale on its server, sets 
the  terms  of  its  service,  is  remunerated  for  that  service  and  provides  general  information  to  its 
customers cannot have the effect of denying it the exemptions from liability provided for by [Article 
14 of the E-Commerce Directive]”.34 However, there is such an  effect, the Court ruled, “[w]here, by 
contrast,  the  [online  platform]  has  provided  assistance  which  entail,  in  particular  optimising  the 
presentation of the offers for sale in question or promoting those offers”.35   

This  suggests  that  the  mere  fact  that  an  online  platform  takes  certain  measures  relating  to  the 
provision of its services in a general manner does not necessarily mean that it plays an active role in 
respect of the individual content items it stores and that the online platform cannot benefit from the 
liability exemption for that reason. In the view of the Commission, such measures can; and indeed 
should,  also  include  proactive  measures  to  detect  and  remove  illegal  content  online,  particularly 
where  those  measures  are  taken  as  part  of  the  application  of  the  terms  of  services  of  the  online 
platform. This will be in line with the balance between the different interests at stake which the E-
Commerce  Directive  seeks  to  achieve.36 Indeed,  it  recalls  that  it  is  in  the  interest  of  all  parties 
involved to adopt and implement rapid and reliable procedures for removing and disabling access to 
illegal  information.37 Although  that  Directive  precludes  online  platforms  from  being  obliged  to 
engage in general active fact-finding,38 it also acknowledges the importance of voluntary measures.39  

Secondly, in accordance with Article 14 of the E-Commerce Directive service providers falling within 
the scope of that provision can only benefit from the liability exemption on two conditions, namely: 
(a) they do not have actual knowledge of the illegal activity or information and, as regards claims for 
damages,  are  not  aware  of  facts  or  circumstances  from  which  the  illegal  activity  or  information  is 
apparent or (b), upon obtaining such knowledge or awareness, they act expeditiously to remove or 
to disable access to the information.  

33 Recital  42  of  the  E-Commerce  Directive.  See  Google  France,  114  and  120;  Judgment  of  12  July  2011,  Case  C‑324/09, 
L'Oréal v eBay, para. 113.  
34 eBay 115 
35 eBay 116 
36 Recital 41 of the E-Commerce Directive.  
37 Recital 40 of the E-Commerce Directive.  
38 Article 15(1) of the E-Commerce Directive. 
39 Recital 40 of the E-Commerce Directive.  

11 

 
                                                 
The  Court  of  Justice  has  clarified  that  these  conditions  cover  “every  situation  in  which  the  [online 
platform] concerned becomes aware, in one way or another, of [facts and circumstances on the basis 
of which a diligent economic operator should have identified the illegality in question]” and that this 
includes – besides notification by a third party – the situation where the platform “uncovers, as the 
result of an investigation undertaken on its own initiative, an illegal activity or illegal information”.40  

It follows that proactive measures taken by an online platform to detect and remove illegal content 
may  result  in  that  platform  obtaining  knowledge  or  awareness  of  illegal  activities  or  illegal 
information, which could thus lead to the loss of the liability exemption in accordance with point (a) 
of Article 14(1) of the E-Commerce Directive. However, in such cases the online platform continues 
to  have  the  possibility  to  act  expeditiously  to  remove  or  to  disable  access  to  the  information  in 
question  upon  obtaining  such  knowledge  or  awareness.  Where  it  does  so,  the  online  platform 
continues  to  benefit  from  the  liability  exemption  pursuant  to  point  (b)  of  Article  14(1).  Therefore, 
concerns  related  to  losing  the  benefit  of  the  liability  exemption  should  not  deter  or  preclude  the 
application  of  the  effective  proactive  voluntary  measures  that  this  Communication  seeks  to 
encourage. 

3.3.2. 

Using technology to detect illegal content 

Given the volume of material intermediated by online platforms, as well as technological progress in 
information  processing  and  machine  intelligence,  the  use  of  automatic  detection  and  filtering 
technologies  is  becoming  an  ever  more  important  tool  in  the  fight  against  illegal  content  online. 
Many large platforms are now making use of some form of matching algorithms, based on a range of 
technologies, from simple metadata filtering, to hashing and fingerprinting content.  

The  E-Commerce  Directive  clarifies  that  the  provisions  relating  to  liability  do  not  preclude  the 
development  and  effective  operation  of  technical  systems  of  protection  and  identification  and  of 
technical surveillance instruments made possible by digital technology.41 As the Directive also makes 
clear,  such  operation  must  however  take  place  within  the  limits  of  the  applicable  rules  of  EU  and 
national  law,  in  particular  on  the  protection  of  privacy  and  personal  data  and  the  prohibition  on 
Member States to impose general monitoring obligations.42 

Sector-specific  legislations  can  set  mandatory  rules  for  online  platforms  to  take  measures  e.g.  on 
copyright to help ensure the detection and removal of illegal content, also when they are eligible for 
the liability exemption provided in Article 14 of the E-Commerce Directive. 

More  generally,  the  use  and  further  development  of  such  technology  is  encouraged  in  particular 
when  serious  harm  is  at  stake,  as  called  for  by  European  Council  Conclusions  on  22  June  201743. 
Automatic  tools  and  filters  can  be  used  to  identify  potentially  infringing  content  and  private  and 

40 eBay 120-121 
41 Recital 40 of the E-Commerce Directive.  
42 Recital 40 and Article 15(1) of the E-Commerce Directive. 
43 http://www.consilium.europa.eu/en/press/press-releases/2017/06/22-euco-security-defence/ 

12 

 
                                                 
public  research  is  advancing  in  developing  such  tools.  For  instance,  in  the  field  of  copyright, 
automatic content recognition has proven an effective tool for several years.  

The  Commission  supports  further  research  and  innovative  approaches  going  beyond  the  state  of 
the art with the objective of improving the accuracy of technical means to identify illegal content44. It 
also  encourages  industry  to  ensure  an  effective  uptake  of  innovations  which  may  contribute  to 
increased efficiency and effectiveness of automatic detection procedures.  

In  most  cases,  current  best  industry  practice  is  to  use  automatic  tools  to  narrow  down  the  set  of 
contentious content for vetting by human experts, who then may need to assess the illegal nature of 
such  content.  This  human-in-the-loop  principle  is,  in  general,  an  important  element  of  automatic 
procedures that seek to determine the illegality of a given content, especially in areas where error 
rates are high or where contextualisation is necessary.  

 The Commission is of the view that proactive measures taken by those online platforms which fall 
under Article 14 of the E-commerce Directive to detect and remove illegal content which they host – 
including the use of automatic tools and tools meant to ensure that previously removed content is 
not re-uploaded – do not in and of themselves lead to a loss of the liability exemption.  

In particular, the taking of such measures need not imply that the online platform concerned plays an 
active role which would no longer allow it to benefit from that exemption. Whenever the taking of 
such  measures  lead  to  the  online  platform  obtaining  actual  knowledge  or  awareness  of  illegal 
activities  or  illegal  information,  it  needs  to  act  expeditiously  to  remove  or  to  disable  access  to  the 
illegal  information  in  question  to  satisfy  the  condition  for  the  continued  availability  of  that 
exemption. 

Online platforms should do their utmost to proactively detect, identify and remove illegal content 
online. The Commission strongly encourages online platforms to use voluntary, proactive measures 
aimed at the detection and removal of illegal content and to step up cooperation and investment in, 
and use of, automatic detection technologies 

4. 

REMOVING ILLEGAL CONTENT  

It is in the entire society's interest that platforms should remove illegal content as fast as possible. 
At the same time, removal of such content should not impede the prosecution of or other follow-up 
to any underlying breach of law. Evidence sharing amongst public authorities and online platforms is 
an  important  policy  in  this  regard.  Cross-border  access  to  evidence  should  be  facilitated  by  the 

44 Current  R&I  efforts  deployed  by  industry  are  directed  towards  the  development  of  analytical  tools  for  a  better 
understanding  of  natural  language,  information  cascades  in  social  networks,  the  identification  of  sources  of  information, 
dissemination patterns and fake identities. The Commission has also supported R&I in this field by funding projects aimed 
at developing automatic verification tools to check the veracity of user generated content on social networks. These tools 
may  help  the  identification  of  potential  falsehoods  in  texts,  images  or  videos  and  support  the  tracking  of  fake  news. 
However the establishment of the illegal nature of such content goes beyond their current functional capabilities.  

13 

 
                                                 
forthcoming  legislative  initiative  on  this  issue45.  The  removal  of  illegal  content  by  platforms  should 
not affect investigations into or the prosecution of offences based on Union or national law. 

Robust safeguards to limit the risk of removal of legal content also should be available, supported 
by a set of meaningful transparency obligations to increase accountability of the removal processes.  

4.1. 

Ensuring expeditious removal and reporting crime to law enforcement authorities 

The E-Commerce Directive requires online platforms to act "expeditiously" to remove illegal content 
after  they  have  obtained  knowledge  thereof,  if  they  wish  to  continue  to  benefit  from  the  liability 
exemption. What this means in practice depends on the specifics of the case at hand, in particular 
the type of illegal content, the accuracy of the notice and the potential damage caused.  

In  practice,  different  content  types  require  a  different  amount  of  contextual  information  to 
determine the legality of a given content item. For instance, while it is easier to determine the illegal 
nature of child sexual abuse material, the determination of the illegality of defamatory statements 
generally requires careful analysis of the context in which it was made.  

Where serious harm is at stake, for instance in cases of incitement to terrorism acts, fast removal is 
particularly important and can be subject to specific timeframes.  

Some voluntary processes such as the Code of Conduct on countering illegal hate speech online have 
provided indicative targets for removal times, in the case of this Code of Conduct, 24 hours for the 
majority of cases.  

Fully  automated  deletion  or  suspension  of  content  can  be  particularly  effective  and  should  be 
applied where the circumstances leave little doubt about the illegality of the material, e.g. in cases of 
material whose removal is notified by law enforcement authorities, or of known illegal content which 
has previously been removed subject to the safeguards referred to in Section 4.3. 

As a general rule, removal deriving from trusted flagger notices should be addressed more quickly, 
due to the quality and accuracy of the information provided in the notice and the trusted status of 
the flaggers.  

In  cases  where  economic  damage  is  at  stake  due  to  infringing  intellectual  property  right,  the 
potential economic damage arising from such an infringement may be closely related to the speed of 
its removal.  

Clear reporting by platforms about the time taken for processing takedown requests according to the 
type of content will facilitate the assessment of the expeditiousness of the action taken and increase 
the wider accountability of platforms.  

In certain cases, especially where online platforms find it difficult to assess the legality of a particular 
content item and it concerns a potentially contentious decision, they could benefit from submitting 

45 See  https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-3896097_en  and  https://ec.europa.eu/home-
affairs/what-we-do/policies/organized-crime-and-human-trafficking/e-evidence_en for more information.  

14 

 
                                                 
cases of doubt to a third party to obtain advice. Self-regulatory bodies or competent authorities play 
this role in different Member States. As part of the reinforced cooperation between online platforms 
and competent authorities, such cooperation is strongly encouraged. 

Finally  online  platforms  should  report  to  law  enforcement  authorities  whenever  they  are  made 
aware  of  or  encounter  evidence  of  criminal  or  other  offences  in  order  to  alert  and  enable  the 
relevant authorities to investigate and prosecute individuals generating such content or the abuse of 
the  services  by  organised  criminal  or  terrorist  groups.  In  doing  so,  they  should  comply  with  the 
applicable  legal  requirements,  including  Regulation  (EU)  2016/679  on  the  protection  of  personal 
data46.,  This  may  also  be  appropriate  in  cases  of  offers  and  sales  of  products  and  commercial 
practices that are non-compliant with EU legislation. 

The  need  to  cooperate  with  law  enforcement  authorities  in  the  investigation  and  prosecution  of 
crimes  may  also  in  some  cases  lead  to  platforms  abstaining  from  removing  the  illegal  content  at 
hand,  when  this  is  required  in  the  framework  of  a  specific  investigation  underway,  under  close 
supervision by national authorities and in full compliance with national criminal procedure rules. 

Law  enforcement  authorities  should  build  up  the  necessary  capacity  to  take  appropriate  action  on 
these  reports. 47 A  best  practice  example  concerning  points  of  contact  is  the  SIRIUS  portal 48 
established  by  Europol  to  support  Member  States  in  online  counter  terrorism  investigations, 
including facilitating co-operation between platforms and EU law enforcement 49 

In accordance with Article 14 of the E-Commerce Directive, online platforms must take down illegal 
content  expeditiously  once  they  are  made  or  become  aware  of  its  existence  if  they  wish  to  be 
exempt  from  liability.  Particularly  fast  removal  is  important  in  the  case  of  illegal  content  where 
serious  harm  is  at  stake,  for  instance  in  cases  of  incitement  to  terrorism  acts.  Removal  times  and 
procedure for different forms of illegal content should be clearly reported in transparency reports.  

The issue of fixed timeframes for removal will be further analysed by the Commission.  

Evidence  of  criminal  offences  obtained  in  the  context  of  illegal  content  removal  should  be 
transmitted  to  law  enforcement  authorities,  provided  this  is  in  compliance  in  particular  with  the 
requirements  laid  down  in  Regulation  (EU)  2016/679,  especially  the  lawful  grounds  for  processing 
personal data. 

46 Article 6(1)(c) in conjunction with Article 6(4). 
47 According to Article 15(2) of the E-Commerce Directive, "Member States may establish obligations for information society 
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." 
48 Shaping Internet Research Investigations Unified System 
49 Europol  will  further  facilitate  the  creation  of  new  Single  Point  of  Contacts  by  providing  relevant  trainings  to  law 
enforcement authorities in countries where SPOCs are not yet established. 

15 

 
                                                 
4.2. 

Enhancing transparency  

4.2.1. 

Transparency on the online platforms' content policy  

The question of whether content is legal or illegal is governed by EU and national laws. At the same 
time the online platforms' own terms of service can consider specific types of content undesirable or 
objectionable.  

Online platforms should disclose their detailed content policies in their terms of service and clearly 
communicate  this  to  their  users.  These  terms  should  not  only  define  the  policy  for  removing  or 
disabling  access  to  content,  but  also  spell  out  the  safeguards  that  ensure  that  content-related 
measures do not lead to over-removal. In particular, online platforms' terms of service should clearly 
spell  out  any  possibility  for  the  users  to  contest  removal  decisions  as  part  of  an  enhanced 
transparency  of  the  platforms'  general  removal  policies.  This  should  help  reduce  the  potential 
negative effect on the users' fundamental right to freedom of expression and information.50 

Online platforms should provide a clear, easily understandable and sufficiently detailed explanation 
of  their  content  policy  in  their  terms  of  service. These should reflect both the treatment of illegal 
content, and content which does not respect the platform's terms of service. All restrictions on the 
kind  of  content  permitted  on  a  particular  platform  should  be  clearly  stated  and  communicated  to 
their users. This explanation should also cover the procedures in place to contest removal decisions, 
including those triggered by trusted flaggers. 

4.2.2. 

Transparency on notice-and-action procedures 

Transparency reporting should also cover the outcome of the application of the platforms' content 
management policies. 

Online platforms should publish transparency reports with sufficiently detailed information on the 
number and type of notices received and actions taken, as well as the time taken for processing, 
and  the  source  of  the  notification51.  These  reports  should  also  include  information  on  counter 
notices, if any, and the response given to these. The Commission encourages the publication of this 
information on a regular basis and at least once per year. 

Taking  due  account  of  content-specific  differences,  these  transparency  reports  would  benefit  from 
some  standardisation  across  the  Digital  Single  Market.  This  would  allow  for  better  monitoring, 
facilitate the electronic aggregation of such information and could help avoid unnecessary barriers to 
the cross-border provision of hosting services. 

Special  attention  should  be  paid  to  enable  smaller  online  platforms  and  SMEs  to  provide  such 
transparency  data,  and  any  supporting  activity  such  as  standardisation  should  ensure  that 
administrative burdens are kept to a minimum.  

50 In case personal data are being processed, platforms shall ensure transparent privacy policies according to Article 12 of 
the General Data Protection Regulation. 
51 Reporting on own investigations, general user notices, notices by law enforcement authorities, etc. 

16 

 
                                                 
The  Commission  will  further  explore,  in  structured  dialogues  with  the  industry,  the  potential  of 
standardisation  with  regard  to  notification  procedures  and  transparency  reporting  about  removal 
systems and outcomes. 

4.3. 

Safeguards against over-removal and abuse of the system 

Expeditious  action,  including  upload-filtering  measures  or  automated  detection  aimed  at  ensuring 
the prompt removal of illegal content, in particular where there is no "human in the loop", can affect 
the  accuracy  of  the  decision,  including  the  risk  that  legal  content  is  removed.  Therefore  it  is 
important to ensure that sufficient safeguards are available so that content which was erroneously 
removed can be reinstated.  

4.3.1. 

Contesting a notice 

In general, those who provided the content should be given the opportunity to contest this decision 
via a counter-notice. This is also valid when content removal has been automated.  

For example, according to Article 28a of the proposal to amend the AVMSD, Member States have to 
ensure that complaint and redress mechanisms are available for the settlement of disputes between 
users  and  video-sharing  platforms  relating  to  the  application  of  the  appropriate  measures  to  be 
taken by those platforms. 

If  the  counter-notice  has  provided  reasonable  grounds  to  consider  that  the  notified  activity  or 
information  is  not  illegal,  the  platform  provider  should  restore  the  content  that  was  removed 
without  undue  delay  or  allow  for  the  re-upload  by  the  user,  without  prejudice  to  the  platform's 
terms of service.  

The possibility to contest decisions should lead to a decrease in the number of unjustified removals 
of legal content and could equally supply documentary evidence for out-of-court dispute resolution 
mechanisms or to judicial appeal procedures.  

In certain circumstances, informing the content provider and/or allowing for a counter-notice would 
not be appropriate – in particular in cases where this would interfere in the investigative powers of 
Member  States’  authorities  necessary  for  the  prevention,  detection  and  prosecution  of  criminal 
offences, such as in the case of child sexual abuse material.  

Online  platform  should  offer  simple  online  counter-notice  procedures.  When  a  counter-notice  is 
filed, online platforms should provide a reply, and in case of a negative decision the reasons should 
be specified. When available in the Member State concerned, platforms are encouraged to allow the 
use of out-of-court dispute settlement bodies to resolve disputes about counter-notices. 

17 

 
4.3.2.  Measures against bad-faith notices and counter-notices 

At the same time, notice-and-action procedures can sometimes be abused with bad practices or in 
bad faith52. These practices should be strongly discouraged, for instance by demoting the treatment 
in priority of notices from a notice provider who sends a high rate of invalid notices or receives a high 
number of counter-notices, or by revoking  the  trusted flagger  status, according  to well-established 
and transparent criteria. These policies should also be clearly described in the terms of service of an 
online platform, and be part of the general transparency reporting of online platforms, to increase 
public accountability. Similar measures should be put in place regarding abusive counter-notices.  

5. 

PREVENTING THE RE-APPEARANCE OF ILLEGAL CONTENT 

Illegal content, once detected and taken down, should not re-appear online. Efficient and effective 
prevention of re-appearance based on existing good practices as well as on appropriate safeguards is 
essential  to  a  well-functioning  system.  Preventing  known  illegal  material  from  being  disseminated 
across platforms requires closer co-operation between online service providers, in full respect of the 
applicable  rules  of  competition  law.  It  is  also  important  to  increase  the  cooperation  by  law 
enforcement  authorities  with  small,  less  resilient  companies,  who  may  become  the  preferred 
platform of choice by criminals and other persons involved in infringing activities online if they are 
deemed more vulnerable than others. 

5.1. 

Measures against repeat infringers  

In order to avoid the re-appearance of illegal content by users posting infringing content of the same 
nature  over  and  over,  many  online  platforms  have  already  put  in  place  measures  against  repeat 
infringers, such as the suspension or termination of accounts or shadow-banning measures.53 

Online  platforms  should  take  measures  which  dissuade  users  from  repeatedly  uploading  illegal 
content of the same nature and aim to effectively disrupt the dissemination of such illegal content. 

This should also apply where the infringer is the same and the substance of the content in question is 
of  the  same  nature  and,  where  justified,  the  user  has  been  promptly  notified  about  the  notice(s) 
received against him/her and about the forthcoming suspension or termination. This would allow the 
user  to  contest  the  decision  and  facilitate  access  to  judicial  redress  against  the  measure,  if 
appropriate under the contract between the user and the platform and the applicable law. In such 
cases, too, any processing of personal data must fully respect the relevant data protection rules.  

Once  again,  no  information  or  notification  of  the  content  provider  should  be  provided  where  this 
would  interfere  in  the  investigative  powers  of  Member  States  necessary  for  the  prevention, 
detection and prosecution of criminal offences, when the necessary legal basis is provided. 

52 Evidence suggest that such information is used by competitors (Notice and Takedown in Everyday Practice, J Urban et al., 
UC Berkeley, 2016), and that the practice of automated creation of notices has been abused to link to artificially created 
content (Google Transparency report). 
53 "Shadow banning" is the act of blocking a user from an online community such that the user does not realise that they 
have been banned. 

18 

 
                                                 
5.2. 

Automatic re-upload filters 

Besides  the  technologies  used  to  identify  potentially  illegal  content  mentioned  in  Section  3.3, 
technological tools can be used with a higher degree of reliability to fingerprint and filter out (take 
down  and  stay  down)  content  which  has  been  already  identified  and  assessed  as  illegal.  The 
Commission therefore strongly encourages the further use of such tools subject to safeguards such 
as reversibility and exceptions as outlined below. 

This is what currently takes place with the “Database of Hashes” being used in relation to terrorist 
content developed under the EU Internet Forum, or in the field of copyright, or for child sexual abuse 
material,  but  also  for  products  which  have  been  flagged  by  law  enforcement  authorities  as  non-
compliant  with  relevant  legislation.  These  practices  have  shown  good  results.  However,  their 
effectiveness depends on further improvements to limit erroneous identification of content and to 
facilitate context-aware decisions, as well as the necessary reversibility safeguards. 

For  instance,  basing  itself  on  practice  in  the  field  of  copyright  in  the  area  of  automatic  content 
recognition,  the  Commission  proposal  on  copyright  in  the  Digital  Single  Market  recognises  such 
technologies – as long as they are appropriate and proportionate – as a possible means, inter alia, of 
preventing the availability of non-licensed content on the relevant online services. 

Automatic stay-down procedures should allow for context-related exceptions and when content that 
has  been  removed  is  changed  and  brought  into  conformity  with  legal  or  other  requirements.The 
scope  and  timing  of  context-related  exceptions  should  take  into  account  the  specific  nature  of  the 
content  and  any  related  security  threat,  as  well  as  the  possibility  of  temporarily  suspending  such 
content pending a more in-depth appraisal.  

The Commission strongly encourages the further use and development of automatic technologies to 
prevent the re-appearance of illegal content online.  

Where automatic tools are used to prevent re-appearance of illegal content a reversibility safeguard 
should be available for erroneous decisions, and the use and performance of this technology should 
be made transparent in the platforms' terms of service.  

Access  to  databases  that  are  used  to  automatically  match  and  identify  reappearing  illegal  content 
should be available to all online platforms, subject to compliance of any processing operation with 
applicable  legislation  on  the  protection  of  personal  data  and  competition.  Privacy  policies  of 
companies  should  include  transparent  information  on  processing  of  personal  data  in  case  of  such 
databases.  

Online platforms should also ensure continuous update of their tools, to ensure all illegal content is 
captured,  in  line  with  changing  tactics  and  behaviour  of  criminals  and  other  persons  involved  in 
infringing activities online. In the case of tools used for terrorist content, these should be adapted to 
capture  new  and  historical  content,  ensure  its  swift  review  and  removal.  Such  content  should  be 
added to cross-platform tools, such as the mentioned Database  of Hashes  (currently being used in 
relation to terrorist content). Such technological development should be carried out in cooperation 
between online platforms, competent authorities and other stakeholders, including civil society.  

19 

 
6. 

CONCLUSIONS 

The increase in illegal content hosted by online platforms creates real harm in society, including risks 
to our citizens' integrity, dignity and health; if not properly addressed, such harm will also undermine 
trust  in  digital  services  more  broadly  speaking,  and  ultimately  in  the  Digital  Single  Market  –  a  key 
engine of innovation, growth and jobs. Even if such content is created and uploaded by third parties, 
the  constantly  rising  influence  of  online  platforms  in  society,  which  flows  from  their  role  as 
gatekeepers  to  content  and  information,  increases  their  responsibilities  towards  their  users  and 
society  at  large.  They  should  therefore  be  proactive  in  weeding  out  illegal  content,  preventing  its 
reappearance,  put  effective  notice-and-action  procedures  in  place,  and  establish  well-functioning 
interfaces with third parties (such as trusted flaggers) and give a particular priority to notices from 
national  law  enforcement  authorities.  Where  online  platforms  decide  which  content  should  be 
considered illegal, in accordance with the law, adequate checks-and-balances should be put in place. 

This Communication provides guidance and does not as such change the applicable legal framework 
or contain legally binding rules; it primarily aims to guide online platforms on the ways in which they 
can  live  up  to  their  responsibility  as  regards  tackling  the  illegal  content  they  host.  It  also  aims  to 
mainstream  good  procedural  practices  across  different  forms  of  illegal  content,  to  promote  closer 
cooperation between platforms and competent authorities. As such it outlines a European approach 
to address illegal content for online platforms, combining the need for fast and effective removals of 
illegal content and prevention and prosecution of crimes with safeguarding the right to free speech 
online. This guidance will complement and reinforce the ongoing sector-specific dialogues. 

Special attention should be given to ensure that smaller online platforms are able to implement such 
procedures, and many elements of this Communication have been conceived bearing in mind their 
specific  needs.  Nonetheless,  the  Commission  will  explore  further  means  to  support  take-up  of  the 
guidance for smaller platforms, too. 

The Digital Single Market requires greater coherence of public policy responses across geographical 
borders. With this Communication, the Commission is therefore, as a first step, providing common 
tools to address the shared challenge of illegal content removal. 

The letter of intent of 13 September 2017 by the President of the European Commission, addressed 
to the President of the European Parliament and the President of the Council of the European Union, 
in  order  to  ensure  an  area  of  Justice  and  Fundamental  Rights  based  on  mutual  trust  announced 
further measures to ensure the swift and proactive detection and removal of illegal content inciting 
hatred,  violence  and  terrorism.  This  Communication  constitutes  a  first  element  of  such  measures. 
The Commission expects online platforms to take swift action over the coming months, including in 
the context of relevant dialogues, in particular in the area of terrorism and illegal hate speech. 

The  Commission  will  continue  exchanges  and  dialogues  with  online  platforms  and  other  relevant 
stakeholders. It will monitor progress and assess whether additional measures are needed, in order 
to ensure the swift and proactive detection and removal of illegal content online, including possible 
legislative measures to complement the existing regulatory framework. This work will be completed 
by May 2018. 

20