Proposal for a regulation on preventing the dissemination of terrorist content online and its fundamental rights implications.
Date: 2019-06-08
Institutions: European Union Agency for Fundamental Rights
Subjects: fundamental rights, human rights, information warfare, proposal (EU), regulation (EU), social media, terrorism

FRA Opinion – 2/2019 

[Online terrorist content] 

Vienna, 12 February 2019 

Proposal for a Regulation on preventing the 
dissemination of terrorist content online and its 
fundamental rights implications 

Opinion of the 
European Union Agency for Fundamental Rights 

 
 
 
 
 
 
  
 
 
 
Luxembourg: Publications Office of the European Union, 2019

 PDF 

ISBN 978-92-9474-244-5 

doi:10.2811/818523 

TK-01-19-164-EN-N

© European Union Agency for Fundamental Rights, 2019 

Reproduction is authorised, provided the source is acknowledged. 

Contents

Acronyms

Opinions

Introduction

1. 

Enhancing respect for fundamental rights by providing a clear definition of terrorist 
content and its dissemination

1.1  Enhancing the foreseeability and clarity of the definition of terrorist content ...................... 17 
FRA Opinion 1 ................................................................................................................................................... 19 
1.2  Clearly limiting the scope of the proposal to content disseminated in the public ................ 19 
FRA Opinion 2 ................................................................................................................................................... 20 
1.3  Excluding certain forms of expression from the scope of the proposal .................................. 21 
FRA Opinion 3 ................................................................................................................................................... 22 

2 

Strengthening fundamental rights safeguards on removal orders

2.1  Safeguarding fundamental rights through effective judicial supervision ............................... 23 
FRA Opinion 4 ................................................................................................................................................... 25 
2.2  Avoiding disproportionate impact on the freedom to conduct a business ............................ 26 
FRA Opinion 5 ................................................................................................................................................... 28 
2.3  Ensuring additional safeguards in cross-border removal orders by involving the authorities 
and courts of the host Member State .............................................................................................. 28 
FRA Opinion 6 ................................................................................................................................................... 29 
2.4  Providing sufficient information to content providers as a precondition for exercising the 

right to an effective remedy ............................................................................................................... 30 
FRA Opinion 7 ................................................................................................................................................... 32 
2.5  Introducing clear safeguards in relation to preserved content that has been removed or 

disabled ..................................................................................................................................................... 32 
FRA Opinion 8 ................................................................................................................................................... 33 

Adjusting the referrals' mechanism to avert unlawful interferences with 
fundamental rights

3.1  Strengthening Member States’ obligation to protect fundamental rights online ................. 35 
FRA Opinion 9 ................................................................................................................................................... 37 

Establishing proactive measures that respect the fundamental rights of users and 
hosting service providers

4.1  Safeguarding due diligence .................................................................................................................. 38 
FRA Opinion 10 ................................................................................................................................................. 40 
4.2  Ensuring the right to an effective remedy for hosting service providers against decisions 

imposing additional proactive measures ......................................................................................... 41 
FRA Opinion 11 ................................................................................................................................................. 42 

3 

4 

 
 
 
 
 
 
 
Acronyms 

Charter 

Charter of Fundamental Rights of the European Union 

CJEU 

ECHR 

ECtHR 

EU 

Europol 

ICCPR 

TEU 

UN 

Court of Justice of the European Union (CJEU is also used for 
the time predating the entry into force of the Lisbon Treaty 
in December 2009) 

European Convention on Human Rights 

European Court of Human Rights 

European Union 

European Union Agency for Law Enforcement Cooperation 

International Covenant on Civil and Political Rights 

Treaty on European Union 

United Nations 

 
THE EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS (FRA),  

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

Recalling the obligations set out in the Charter of Fundamental Rights of the European 
Union (the Charter),  

In  accordance  with  Council  Regulation  (EC)  No.  168/2007  of  15  February  2007 
establishing  a  European  Union  Agency  for  Fundamental  Rights  (FRA),  in  particular 
Article 2 with the objective of FRA to provide the relevant institutions, bodies, offices 
and  agencies  of  the  Community  and  its  EU  Member  States  when  implementing 
Community law with assistance and expertise relating to fundamental rights in order to 
support  them  when  they  take  measures  or  formulate  courses  of  action  within  their 
respective spheres of competence to fully respect fundamental rights

Having regard to Article 4 (1) (d) of Council Regulation (EC) No. 168/2007, with the task 
of FRA to formulate and publish conclusions and opinions on specific thematic topics, for 
the Union institutions and the  EU Member States when implementing Community law, 
either on its own initiative or at the request of the European Parliament, the Council or the 
Commission

Having  regard  to  Recital (13)  of  Council  Regulation  (EC)  No.  168/2007,  according  to 
which the institutions should be able to request opinions on their legislative proposals or 
positions taken in the course of legislative procedures as far as their compatibility with 
fundamental rights are concerned

Having regard to the request of the European Parliament of 6 February 2019 to FRA for 
an opinion “on the key fundamental rights implications of the proposal for a Regulation 
on preventing the dissemination of terrorist content online (2018/0331 (COD))”, 

SUBMITS THE FOLLOWING OPINION: 

Opinions 

1.  Enhancing  respect  for  fundamental  rights  by  providing 
a clear definition of terrorist content and its dissemination 

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

The  definition  of  terrorist  content  in  the  proposal  draws  on  definitions  of  terrorist 
offences  under  Directive  (EU)  2017/541  (Terrorism  Directive),  which  are  however 
construed  for  the  purposes  of  criminal  proceedings.  Furthermore,  the  proposal 
deviates  from  the  Directive  in  important  aspects.  Article  2  (5)  (c)  referring  to 
“promoting the activities of a terrorist group”; (d) referring to “instructing on methods 
or techniques for the purpose of committing terrorist offences”; and, in particular, (b) 
referring to “encouraging the contribution to terrorist offences”. These all potentially 
broaden  the  concept  of  terrorist  content  beyond  that  foreseen  by  the  Terrorism 
Directive. This gives rise to a risk of unlawful interference with fundamental rights, in 
particular the right to freedom of expression guaranteed in Article 11 of the Charter.  

To ensure that it will only apply to content which would manifestly fall under the 
scope of the Terrorism Directive, the EU legislator should amend proposed Article 2 
(5) as follows: 

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

 (a) incites or advocates, including by glorifying, the commission of terrorist 
 offences, thereby causing a danger that such acts be committed; 

 (b)  promotes  the  activities  of  a  terrorist  group,  in  particular  by  inciting, 
soliciting  or  advocating  persons  or  a  group  of  persons  to  participate  in  the 
activities of a terrorist group, including by supplying information or material 
resources, or by funding its activities in any way; or 

 (c) provides instruction on the making or use of explosives, firearms or other 
 weapons or noxious or hazardous substances, or on other specific methods or 
 techniques, for the purpose of committing, or contributing to the commission 
of, terrorist offences.” 

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

Unlike the Terrorism Directive which covers content disseminated to the “public”, the 
proposal applies to any content that becomes “available to third parties”. This broad 
formulation  means  that  the  Regulation  could  be  interpreted  as  applying  to  private 
communication – emails, private messaging and cloud infrastructure services – which 
would represent a disproportionate and unjustified interference with the freedom of 
expression and information under Article 11 of the Charter and the right to private and 
family life under Article 7 of the Charter. 

The  EU  legislator  should  ensure  that  the  proposed  Regulation  does  not  apply  to 
expression which does not enter the public domain, disproportionately interfering 
with  the  rights  to  freedom  of  expression  and  private  life  and  correspondence  of 
internet users at large. Accordingly, the EU legislator should consider: 

 

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

 

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

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

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

The preamble of the proposal acknowledges the need to ensure that certain protected 
forms of expression are respected. Nevertheless, the proposal lacks provisions that 
would explicitly oblige competent authorities and courts to exclude dissemination of 
content  for  legitimate  purposes,  notably  informing  the  public  of  matters  of  public 
interest  and  promoting  education,  academic  and  scientific  research,  or  literary  or 
artistic expression. 

The  EU  legislator  should  ensure  that  forms  of  expression  such  as  journalistic, 
academic and artistic expression are adequately protected, such as by considering 
introducing in Article 1 of the proposal a new paragraph (3), in line with Recital (9), 
providing  that  “Content  disseminated  for  educational,  journalistic,  artistic  or 
research purposes or awareness raising activities against terrorism is excluded.” 

2.  Strengthening fundamental rights safeguards on removal 

orders  

FRA Opinion 4: Safeguarding fundamental rights through effective judicial 
supervision 

Removal  orders  as  regulated  in  Article  4  of  the  proposal  require  hosting  service 
providers to remove or disable access to content identified by the competent authority 
as  terrorist.  The  proposal  does  not  guarantee  any  type  of  involvement  of  an 
independent judicial authority in the adoption or prior to the execution of the removal 
order. At the same time, neither the content provider nor the hosting service provider 
are  afforded  a  mechanism  to  effectively  challenge  the  order  before  the  removal  is 
carried out. Combined with the limitations on access to an effective remedy once the 
removal  has  already  taken  place,  this  offers  insufficient  protection  to  the  rights  at 
stake, in particular freedom of expression and information and freedom to conduct a 
business under Articles 11 and 16 of the Charter. 

In  order  to  ensure  that  removal  orders  are  always  based  on  an  independent  and 
impartial  assessment,  the  EU  legislator  should  prescribe  that  the  competent 
authority  responsible  for  issuing  removal  orders  be  an  independent  judicial 
authority. 

Alternatively, the EU legislator could consider: 

  amending Article 4 (1) by stating that where the competent authority is not 
a  judicial  authority,  or  where  the  removal  order  is  not  based  on  a  judicial 
authority’s  decision,  the  removal  order  addressed  to  the  hosting  service 
provider shall be at the same time submitted for review to an independent 
judicial  authority  determined  in  accordance  with  national  law;  this  judicial 
authority  shall  notify  the  competent  authority  and  the  hosting  service 
provider of its decision within twenty-four (24) hours from the receipt of the 
removal order; 

  adding in Article 4 (2) that where the judicial authority conducting a review 
pursuant  to  paragraph  (1)  issues  a  decision  that  does  not  confirm  the 
removal  order’s 
legality,  the  competent  authority  shall  ensure  the 
immediate  restoration  of  such  content,  provided  it  has  already  been 
removed or access to it disabled. 

FRA  Opinion  5:  Avoiding  disproportionate  impact  on  the  freedom  to 
conduct a business 

The proposed rules for the implementation of removal orders will have considerable 
implications on the operation of hosting service providers. The time limit of one hour 
to comply with the removal order, which applies to all host service providers and any 
content – irrespective of whether it poses an imminent threat – is significantly stricter 
than  the  current  practice  among  EU  Member  States. 
It  may  represent  a 
disproportionate restriction to the freedom to conduct a business under Article 16 of 
the  Charter,  especially  with  regard  to  smaller  businesses.  It  could  also  lead  to 
automation in the processing of removal orders, with a further negative impact also 
on the freedom of expression and information of users under Article 11 of the Charter. 

In  order  to  avoid  disproportionate  impact  of  removal  orders  on  the  operation  of 
hosting  service  providers  and  the  risk  of  further  negative  effects  on  fundamental 
rights, the EU legislator should consider: 

  amending Article 4 (2) of the proposal as follows: “Hosting service providers 
shall remove terrorist content or disable access to it within twenty-four (24) 
hours from receipt of the removal order. In exceptional circumstances where 
the  competent  authority  stipulates  in the  removal order  that the  particular 
content  poses  an  imminent  threat,  hosting  service  providers  shall  remove 
terrorist content or disable access to it within a period shorter than twenty-
four  (24)  hours  from  receipt  of  the  removal  order.  The  period  shall  be 
specifically defined by the competent authority in the removal order; and it 
cannot be less than one hour from receipt of the removal order, taking into 
account  the  time  zone,  working  days  and  hours  of  the  addressee  hosting 
service provider.”  

  amending Article 4 (4) of the proposal to provide that the detailed statement 
of reasons should contain, where applicable, also the reasons which require 
removing of the content or blocking access to it within less than twenty-four 
hours. 

FRA  Opinion  6:  Ensuring  additional  safeguards  in  cross-border  removal 
orders by involving the authorities and courts of the host Member State 

In cases of cross-border removal orders, the proposal creates a system in which an 
order issued by one Member State cannot be challenged in the Member State in which 
the  hosting  service  provider  is  established  (or  in  which  it  has  a  designated  legal 
representative). In line with the basic principles of territorial jurisdiction and related 
ECtHR case law, the host Member State must be empowered to review the removal 
order in cases where there are reasonable grounds to believe that fundamental rights 
are impacted within its own jurisdiction. At the same time, in line with the right to an 
effective remedy enshrined in Article 19 TEU and Article 47 of the Charter, each natural 
or legal person has the right to an effective remedy before the competent national 
tribunal  against  any  of  the  measures  which  can  adversely  affect  the  rights  of  that 

person.  Accordingly,  the  right  should  include  the  possibility  for  hosting  service 
providers  and  content  providers  to  effectively  contest  the  removal  orders  before 
a court of the host Member State, where it is different from the issuing Member State.  

The  EU  legislator should  ensure  that  cross-border  removal  orders are  regulated  in 
a manner which provides sufficient safeguards to the affected fundamental rights, 
including  by  providing  access  to  an  effective  remedy.  The  EU  legislator  should 
address this explicitly in the relevant substantive provisions by: 

 

 

requiring  the  issuing  Member  State  to  notify  competent  authorities  in  the 
host  Member State,  alongside the hosting service provider, of the removal 
order when it is issued; 

introducing additional safeguards to ensure access to an effective remedy, by 
providing in substantive articles for the possibility of effectively challenging 
the removal order before a competent court of the host Member State. 

FRA Opinion 7: Providing sufficient information to content providers as 
a precondition for exercising the right to an effective remedy 

The proposal does not ensure that the content provider receives a copy of the removal 
order, which represents the legal basis for the removal, contains important information 
not available through other means, and would be necessary to challenge the measure 
effectively  before  the  courts.  Neither  does  it  ensure  that  the  content  provider  is 
informed  about  the  available  legal  remedies  against  such  orders.  Therefore,  the 
proposal does not guarantee that content providers have full knowledge of all relevant 
facts needed to decide whether and on what grounds they will challenge the removal 
order. As a result, the proposed Regulation does not provide for minimum safeguards 
ensuring the effectiveness of a remedial action and legal scrutiny by judicial bodies in 
line with Article 47 of the Charter.  

The EU legislator should ensure that the content provider can receive, at the latest 
after the removal or disabling of access to the content, a copy of the removal order 
and information about available legal remedies to effectively exercise its right under 
Article 47 of the Charter. For this reason, the EU legislator should consider amending: 

  Recital (26) fifth sentence, to state: “Further information about the reasons 
for the removal, as well as a copy of the removal order and information of 
the possibilities for the content provider to contest the decision before a court 
should be given upon request.” 

  Article 4 (4), to state: “Upon request by the hosting service provider or by the 
content  provider,  the  competent  authority  shall  provide  a  copy  of  the 
removal order including a detailed statement of reasons, and any information 
about the available legal remedies to appeal against removal orders before a 
court, without prejudice to the obligation of the hosting service provider  to 
comply with the removal order within the deadline set out in paragraph 2.” 

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

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

 
 
FRA  Opinion  8:  Introducing  clear  safeguards  in  relation  to  preserved 
content that has been removed or disabled 

Article 7 of the proposal envisages that data preserved following removal orders may 
later be accessed for investigatory or prosecutorial purposes. Nonetheless, it does not 
require  that  such  access  depend  upon  prior  review  by  a  court  or  independent 
administrative body. The proposal also does not clearly stipulate the requirement to 
erase any data preserved following their preservation period. According to the CJEU 
and ECtHR jurisprudence, sufficiently clear rules are required to safeguard the rights to 
personal data protection and private life under Articles 7 and 8 of the Charter.  

The EU legislator should accompany the requirement for hosting service providers to 
preserve content that has been removed or disabled as a result of a removal order 
with  sufficiently  specific  safeguards.  For  this  reason,  the  EU  legislator  should 
consider: 

  stating in Recital (23) that “Member States should lay down clear and precise 
rules indicating in what circumstances and under what conditions competent 
national authorities can access the preserved content and any related data. 
Access to such content and data must be subject to a prior review by a court 
or  independent  administrative  body,  except  in  cases  of  validly  established 
urgency.” 

  adding a sentence at the end of Article 7 (1) stating that ”Except in cases of 
validly established urgency, access to terrorist content and related data for 
any  of  the  purposes  under  point  (b)  shall  be  authorised  only  after  a  prior 
review by a court or other independent administrative authority according to 
national legislation.” 

  adding  a  new  second  sentence  in  Article  7  (2)  stating  that  “Related  data 
preserved shall be erased after this period.” The same requirement could be 
reflected in Recital (22). 

3.  Adjusting  the  referrals'  mechanism  to  avert  unlawful 

interferences with fundamental rights 

FRA  Opinion  9:  Strengthening  Member  States’  obligation  to  protect 
fundamental rights online 

The proposal does not sufficiently justify the necessity of introducing the mechanism 
of referrals under Article 5 through which competent authorities could instruct hosting 
service  providers  to  assess  specific  content  against  their  terms  of  service  and 
community standards, and potentially remove it. If they are introduced alongside other 
measures  in  the  proposal,  particularly  mandatory  removal  orders,  without  clearly 
distinguishing the circumstances in which they should be used,  it carries the risk of 
expanding  the  scope  of  what  is  understood  as  terrorist  content,  blurring  the 
responsibility  for  assessing  the  online  content  and  undermining  the  legal  certainty 
regarding liability of hosting service providers. These implications, together with the 
proposed  system  of  penalties,  could  lead  to  a  chilling  effect  on  the  freedom  of 
expression and information protected under Article 11 of the Charter. 

The  EU  legislator  should  introduce  clear  rules  to  distinguish  between  content  that 
would  justify  issuing  a  removal  order,  and  other  terrorist  content  which  would 
require resorting to a referral. 

Furthermore, the EU legislator should consider omitting the reference to Article 5 and 
referrals in Article 18 (1) (c) requiring Member States to introduce penalties upon 
hosting service providers. 

Finally,  the  EU  legislator  should  consider  including  a  reference  to  the  positive 
obligation  of  the  Member  States  to  secure  the  effective  exercise  of  fundamental 
rights and prevent fundamental rights violations in a relevant recital. 

4.  Establishing  proactive  measures 

the 
fundamental rights of users and hosting service providers 

respect 

that 

FRA Opinion 10: Safeguarding due diligence 

By introducing in Article 6 a broad obligation upon hosting service providers to apply 
proactive measures to assess and potentially remove content and at the same time 
making them fully responsible for potential interferences with fundamental rights, the 
proposal raises issues of compatibility with the positive obligations of the state under 
the Charter. Obligations under the proposed Article 6 may lead to general monitoring 
of  content,  which  would  not  be  compatible  with  online  users’  right  to  freedom  of 
expression and information pursuant to Article 11 of the Charter. They also carry risks 
for the rights to private life and protection of personal data of other persons under 
Articles 7 and 8 of the Charter. The impact of enhanced use of automated means and 
artificial intelligence software, encouraged by the proposal, would significantly impact 
on  the  rights  of  freedom  of  expression  and  information  and  non-discriminatory 
treatment of online users, also due to the limited reliability of such tools. 

The  EU  legislator  should  consider  deleting  Article  6  (1)  obliging  hosting  service 
providers to apply proactive measures. A relevant recital should instead refer to the 
positive  obligation  of  the  Member  States  to  secure  the  effective  exercise  of 
fundamental  rights  and  prevent  fundamental  rights  violations,  including  by 
providing  necessary  guidance  to  hosting  services  providers  to  ensure  that  their 
content restricting polices set out in the general terms and conditions pay due regard 
to  the  relevant  human  rights  standards;  and  underline  that  the  effectiveness  of 
software  used  to  detect  terrorist  content  should  be  adequately  tested,  especially 
from a fundamental rights perspective. 

The EU legislator should clarify in Article 6 (2) that the provision aims at preventing 
the re-appearing of content identical to that previously identified as terrorist, and 
removed on the basis of a removal order. Furthermore, it should ensure by amending 
Recital (19) that the proposal does not permit any conflict with EU law, namely by 
allowing for a derogation from the prohibition of general monitoring obligation, as 
enshrined in Article 15 of the E-Commerce Directive. 

At the same time, the EU legislator should also clarify in Recital (18) that Article 6 (2) 
should  not  be  interpreted  as  requiring  any  hosting  service  provider  to  whom  a 
removal order  had  been  addressed to  introduce  proactive  measures, and  that  the 
competent  authority  referred  to  in  Article  17  (1)  (c)  should  take  into  account  the 
level of exposure of the host service providers to terrorist content. 

FRA  Opinion  11:  Ensuring  the  right  to  an  effective  remedy  for  hosting 
service providers against decisions imposing additional proactive measures 

The  proposal  establishes  in  Article  6 (4)  that  the  competent  authority  can  issue  a 
decision  requiring  hosting  service  providers  to  take  specific  additional  proactive 
measures on a mandatory basis. At the same time, it only provides for a review by the 
same competent authority, without requiring that such review should be conducted by 
a  court,  contrary  to  the  minimum  requirements  for  an  effective  remedy  under 
Article 47 of the Charter.  

The EU legislator should ensure the right to an effective remedy for hosting service 
providers  against  the  mandatory  imposition  of  additional  proactive  measures  by 
amending Article 6 (5) to state that decisions taken pursuant to Article 6(4) shall be 
subject to review by a court. 

 
Introduction 

This  Opinion  by  the  European  Union  Agency  for  Fundamental  Rights (FRA)  aims  to 
inform the European Parliament’s position on the legislative proposal for a Regulation 
on preventing the dissemination of terrorist content online, presented by the European 
Commission on 12 September 2018.1 Throughout the text, this FRA Opinion refers to 
the  legislative  text using  the  wording  “the  proposal”  or  “the  proposed Regulation”. 
According  to  the  Explanatory  Memorandum  to  the  proposal,  terrorists  “misuse  the 
internet to groom and recruit supporters, to prepare and facilitate terrorist activity, to 
glorify  in  their  atrocities  and  urge  others  to  follow  suit.”2  The  impact  assessment 
accompanying the proposal points out that availability of online terrorist content can 
accelerate radicalisation, recruit terrorist supporters and facilitate or instruct terrorist 
activity.3  

The  proposed  Regulation  follows  a  set  of  recently  adopted  voluntary  measures.  It 
builds  on  the  work  of  the  EU  Internet  Forum,  launched  in  December  2015  as  a 
framework of voluntary cooperation between Member States and representatives of 
major internet companies to detect and address online terrorist content. The proposal 
also  operationalises  the  Commission’s  Communication  on  tackling  illegal  content 
online,  towards  enhanced  responsibility  of  online  platforms.4  Finally,  it  aims  to 
transform  into  legally  binding  provisions  some  of  the  elements  in  the  Commission 
Recommendation on measures to effectively tackle illegal content online, which sets 
up a voluntary framework of action for internet intermediaries. 5  

According to Recital (1) of the proposal, by preventing the misuse of hosting services 
for terrorist purposes, the proposed Regulation aims to ensure the smooth functioning 
of the digital single market in an open and democratic society. The proposal contains 
a definition of ”terrorist content” in Article 2 (5) that is directly linked to the definition 
of  terrorist  offences  set  out  in  Directive  (EU)  2017/541  on  combating  terrorism 
(Terrorism Directive).6  

The proposal introduces three specific measures for detecting and removing terrorist 
content from online platforms. Each requires a different type of action from the hosting 
service providers: 

  Removal  orders  issued  by  a  national  competent  authority,  oblige  hosting 
service  providers  to  remove  the  content  identified  in  the  order  or  disable 
access to it within one hour from its receipt (Article 4). 

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

Council on preventing the dissemination of terrorist content online, 2018/0329(COD), COM(2018) 
640 final, Brussels, 12 September 2018. 

2   Explanatory Memorandum to the proposal, p. 1.  
3   European Commission (2018), Commission Staff Working Document - Impact Assessment 

Accompanying the Document Proposal for a regulation of the European parliament and of the 
Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels, 
12 September 2018, p. 16.  

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

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

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

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

6   European Union (2017), Directive (EU) 2017/541 of the European Parliament and of the Council of 
15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA 
and amending Council Decision 2005/671/JHA, OJ 2017 L 88, 31 March 2018.  

                                                 
  Referrals,  which  alert  hosting  service  providers  about  the  existence  of 
potentially terrorist content on their platform. Referrals do not directly oblige 
hosting  service  providers  to  remove  the  notified  content.  However,  they 
require them to assess the compatibility of such content with their own terms 
of service and decide whether to remove it or to disable access to it (Article 5). 

  Proactive  measures  introduced  by  hosting  service  providers  to  facilitate 
identification  and  the  removal  of  terrorist  content  from  their  platforms.  The 
proactive measures should include automated means in certain cases (Article 6). 

As  noted  by  the  European  Commission’s  Impact  Assessment  accompanying  the 
proposal,  the  proposed  Regulation  will  have  an  impact  on  fundamental  rights.  The 
Agency recognises the importance of the overall goal to prevent the misuse of  the 
internet  by  terrorists  and  acknowledges  the  important  contribution  the  proposed 
Regulation aims to make in this context. However, the Agency also wishes to bring to 
the  attention  of  the  EU  legislator  several  key  fundamental  rights  concerns  that  the 
proposal raises. 

The proposal is based on a broad concept of what constitutes dissemination of terrorist 
content online, and transfers a significant share of the responsibility for addressing the 
issue to private parties. This shift of responsibility is closely related to the choice of 
the  legal  basis  of  Article  114  (approximation  of  laws  for  the  improvement  of  the 
internal market) rather than Article 83 TFEU (judicial cooperation in criminal matters 
for  the  definition  of  criminal  offences)  or  Article  82  TFEU  (Judicial  cooperation  in 
criminal matters – procedures). It has serious implications for internet users as well as 
hosting  service  providers  themselves,  as  it  significantly  reduces  the  legal  and 
procedural  safeguards  accompanying  the  measures  introduced  by  the  proposed 
Regulation.  The  introduction  of  co-regulatory  and  self-regulatory  tools,  such  as 
referrals and proactive measures, in conjunction with a general obligation to prevent 
dissemination  of  terrorist  content  and  high  penalties,  will  create  an  incentive  for 
hosting  service  providers  to  more  actively  remove  content  and  employ  more 
automated  tools.  Such  a  development  would  have  major  implications  primarily  on 
freedom  of  expression  and  information  but  also  due  process  principles  in  general. 
Against  this  background,  this  Opinion  examines  the  potential  implications  of  the 
proposed Regulation on freedom of expression and information, which is a cornerstone 
of democratic society. This right, which also includes the freedom to hold opinions and 
to  receive  and  impart  information  and  ideas,  is  enshrined  in  Article  11  (1)  of  the 
Charter. Article 13 of the Charter further establishes the right to artistic, scientific and 
academic freedom, which is deduced primarily from the right to freedom of thought 
and  expression.7  According  to  Article  52  (1)  of  the  Charter,  any  limitation  on  the 
exercise of these freedoms must be provided for by law and respect the essence of 
these rights. Such limitations must only be made if they are necessary and genuinely 
meet objectives of general interest recognised by the Union or the need to protect the 
rights and freedoms of others. 

As is evident from Article 52 (3) of the Charter and the Court of Justice of the European 
Union (CJEU) jurisprudence, the meaning and scope of this right are the same as those 
guaranteed  by  Article  10  of  the  European  Convention  on  Human  Rights (ECHR) 

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

Article 13, 14 December 2013, p. 22.  

                                                 
covering  the  freedom  of  expression8  and  as  interpreted  by  the  European  Court  of 
Human Rights (ECtHR). The limitations, which may be imposed on it, may therefore not 
exceed  those  provided  for  in  Article  10  (2)  of  the  ECHR,  including  the  interests  of 
national  security,  territorial  integrity  and  public  safety.9  The  objective  of  the  fight 
against terrorism represents such a legitimate limitation.10 For example, restrictions on 
idealising, condoning or commenting positively on terrorist crimes and terrorists are in 
principle justified.11 At the same time, manifest incitement to violence, hatred or other 
forms of intolerance, which negate the actual values of the ECHR and aim at destroying 
the rights and freedoms of others, are excluded from the protective scope of freedom 
of expression altogether.12 

The ECtHR has nevertheless construed this exclusion narrowly, also in the context of 
potential terrorist content. The jurisprudence requires that safeguards are in place and 
states  that  difficulties  related  to  the  fight  against  terrorism  do  not  negate  the 
obligation  to  ensure  freedom  of  expression;  it  only  permits  restrictions  that  are 
necessary  and  proportionate.13  Legislation  outlawing  such  expressions  must  avoid 
excessive interferences with political speech, or public interest debates and criticism 
of  the authorities  that should  not  be  restricted.14 In  this  regard, the  ECtHR  regularly 
reiterated that freedom of expression is applicable not only to “information” or “ideas” 
that are favourably received or regarded as inoffensive or as a matter of indifference, 
but also to those that offend, shock or disturb the state or any sector of the population. 
Such  are  the  demands  of  pluralism,  tolerance  and  broadmindedness  without  which 
there  is  no  “democratic  society”.15  The  protective  scope  of  freedom  of  expression 
extends beyond the content of information also to the means of its dissemination. This 
is because “any restriction imposed on the means necessarily interferes with the right 
to  receive  and impart  information”.16  The  ECtHR  has  also  specifically  acknowledged 
the important role that the internet plays for the exercise of freedom of expression 
facilitating dissemination of information and access by the public.17  

Apart from freedom of expression and information, there are other fundamental rights 
and freedoms provided for in the Charter which will be considerably impacted upon by 
the proposed rules. These include the right to respect for private and family life (Article 
7)  and  the  right  to  protection  of  personal  data  (Article  8),  freedom  of  thought, 
conscience and religion (Article 10), freedom of assembly and of association (Article 
12),  freedom  of  the  arts  and  science  (Article  13),  freedom  to  conduct  a  business 
(Article 16), non-discrimination (Article 21), the right to an effective remedy and to a 

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

December 2015, para. 65. 

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

11, p. 21. 

10   ECtHR, Leroy v. France, No. 36109/03, 2 October 2008, para. 36. 
11   ECtHR, Stomakhin v. Russia, No. 52273/07, 9 May 2018, paras. 89, 99-107; Bidart v. France, No. 

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

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

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

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

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

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

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

15   ECtHR, Döner and Others v. Turkey, No. 29994/02, 7 March 2017, para. 98. 
16   ECtHR, Öztürk v. Turkey, No. 22479/93, 28 September 1999, para. 49. 
17   ECtHR, Delfi AS v. Estonia, No. 64569/09, 16 June 2015, paras. 110, 133; ECtHR, Times Newspapers 
Ltd (nos. 1 and 2) v. the United Kingdom, Nos. 3002/03 and 23676/03, 10 March 2009, para. 27.  

                                                 
fair trial (Article 47 of the Charter) as well as certain other rights that may arise in the 
particular context of criminal proceedings, such as the right not to be tried or punished 
twice in criminal proceedings for the same criminal offence (ne bis in idem principle, 
Article 50).  

In light of the scope of the European Parliament’s request, this Opinion does not cover 
all  of  these  rights  enshrined  in  the  Charter,  which  is  “addressed  to  the  Member 
States […] when they are implementing Union law”18 or “when they act in the scope 
of EU law”.19 It focuses, in a non-exhaustive manner, on several selected fundamental 
rights in relation to which the impact of the proposed regime can be expected to be 
most  significant.  On  issues  with  specific  impact  in  the  field  of  privacy  and  data 
protection, this Opinion is without prejudice to a possible dedicated opinion delivered 
by the European Data Protection Supervisor. 

This  FRA  Opinion  contains  11  individual  opinions  that  relate  to  the  following  rights, 
namely (in the order of the Articles in the Charter): 

 

 

 

 

 

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

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

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

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

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

The Opinion is structured around the main fundamental rights implications connected 
to  the  scope  of  the  proposed  Regulation  (definition  of  the  terrorist  content  and  its 
dissemination) as well as to individual measures proposed (removal orders, referrals 
and proactive measures). Given that both issues are closely interrelated, all the specific 
safeguards proposed in this FRA Opinion are intended to be mutually complementary 
rather than work in isolation. 

More  specifically  and  following  the  order  of  individual  provisions  in  the  proposed 
Regulation,  Chapter  1  looks at  the  implications of  the  definition  of  terrorist  content 
used by the proposal, including its relation to terrorist offences, the question of what 
constitutes public dissemination, and the need to protect certain forms of expression. 
Chapter 2 analyses the fundamental rights implications of the proposed mechanism of 
removal  orders,  including  involving  an  independent  judicial  authority,  time  limit  for 
complying with removal orders, issue of jurisdiction in cross-border cases, the practical 
availability of remedies for content providers and the issue of retention of removed 
content.  Chapter  3  examines  the  proposed  referral  mechanism,  including  the 
responsibility for protecting fundamental rights online. Chapter 4 looks at the issue of 
due  diligence  of  hosting  service  providers and  the  right  to  judicial protection  in  the 
context of proactive measures. 

18   See Art. 51 of the Charter of Fundamental Rights of the European Union, OJ C 326, 26 October 2012; 
FRA (2018), Challenges and opportunities for the implementation of the Charter of Fundamental 
Rights, FRA Opinion, 4/2018, Vienna, 24 September 2018. 

19   CJEU, Åklagaren v. Hans Åkerberg Fransson, Case C-617/10, 26 February 2013, paras. 20-21. See 
also FRA (2018), Applying the Charter of Fundamental Rights of the European Union in law and 
policymaking at national level – Guidance, Luxembourg, Publications Office of the European Union, 
pp. 17-18; Hancox, E. (2013), ‘The Meaning of “Implementing” EU Law under Article 51(1) of the 
Charter: Åkerberg Fransson’, Common Market Law Review, Vol. 50, pp. 1411-1432. 

 
 
                                                 
  Enhancing respect for fundamental rights by providing a 
clear definition of terrorist content and its dissemination 

Article  2  of  the  proposal  defines  key  terms,  including  “terrorist  content”  and 
“dissemination of terrorist content”. The definition of terrorist content in paragraph (5) 
refers to four types of content. It draws on, as acknowledged in Recital (9) and the 
Explanatory  Memorandum  to  the  proposal,  definitions  of  criminal  offences  in  the 
Terrorism  Directive  that  cover  public  provocation  to  commit  a  terrorist  offence, 
recruitment  and  providing  training  for  terrorism.20  The  formulations  used  by  the 
proposal to define the different types of content are however broader than those used 
in  the  Terrorism  Directive.  In  addition,  the  dissemination  of  terrorist  content  in 
paragraph (6) is defined by means of its availability to third parties rather than public 
availability, which is the approach of the Terrorism Directive. 

This Chapter deals with the impact of the proposed definitions on the right to freedom 
of  expression  and  information  (Article  11  of  the  Charter).  It also  takes into  account 
potential implications of the proposal on content disseminated for specific purposes, 
such as those of an educational, journalistic or research nature. Other rights affected 
by the proposal, especially the right to private life (Article 7 of the Charter), will also 
be touched upon.  

Given the relevance of the definitions for the overall scope of the Regulation and the 
measures envisaged therein (namely removal orders, proactive measures, referrals), 
observations in the subsequent Chapters of this Opinion should be read in conjunction 
with the findings of this Chapter. 

1.1 

Enhancing  the  foreseeability  and  clarity  of  the  definition  of 
terrorist content  

According to the jurisprudence of the ECtHR, the definition of “terrorist content” should 
be construed as strictly as possible. It should only refer to forms of expression that 
manifestly  incite,  glorify  or  justify  violence,  hatred  or  other  forms  of  intolerance 
relating to terrorist activities.21 Such expressions must go beyond a mere declaration 
of sympathy.22 In accordance with the case law, ’terrorist content‘ should be assessed 
in light of the context and circumstances under which it is disseminated, taking into 
account its possible impact, the means of its dissemination, the authors and their public 
influence.23  Similarly,  the  UN  Human  Rights  Committee  emphasised  that  counter-
terrorism measures should not lead to unnecessary or disproportionate interference 
with the right to freedom of expression.24 

The definition of types of content considered to be “terrorist” in Article 2 (5) of the 
proposal is based on formulations in the Terrorism Directive which are conceived as 
elements  of  specific  criminal  offences.  This  means  that  the  broad  definitions  in  the 

20   Explanatory Memorandum to the proposal, p. 3. 
21   ECtHR, Roj TV A/S v. Denmark, No. 24683/14, 17 April 2018, paras. 46-48; Hizb Ut-Tahrir and Others 

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

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

52363/11, 12 November 2015, paras. 35, 45; M’Bala M’Bala v. France, No. 25239/13, 20 October 
2014, paras. 37-39. 

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

para. 46. 

                                                 
Terrorism Directive – such as that of public provocation to commit a terrorist offence 
in Article 5 of the Terrorism Directive which serves as a basis for Article 2 (5) (a) and 
includes  the  term  “glorification”  25  –  are  envisaged  to  be  further  refined  when  the 
Directive in transposed into national law and applied in criminal proceedings. Here the 
content would be assessed together with all other relevant circumstances of the case. 
The full set of specific fair trial guarantees would also apply. 

This  is  not  the  case  of  the  proposed  Regulation.  The  definitions  will  be  used  in  the 
context of different non-criminal measures (removal orders, referrals and proactive 
measures)  applied  by  different  entities  including  private  companies.  While  these 
entities will still have to take into account the overall context in order to not to remove 
content that is actually legal (e.g. disseminated for educational, journalistic or research 
purposes, see Section 1.3), the evidentiary situation and the presence of safeguards 
will differ considerably from that for which the definitions in the Terrorism Directive 
were  conceived.  In  light  of  the  particular  risk  for  the  freedom  of  expression  and 
information,  this  would  require  refining  the  definition  to  cases  where  the  terrorist 
nature of the content is manifest.  

Furthermore, the definition of terrorist content in the proposal is even broader in some 
aspects than the definitions laid down in the Terrorism Directive.  

The most ambiguous description of terrorist content is contained in Article 2 (5) (b) of 
the  proposal.  This  covers  information  “encouraging  the  contribution  to  terrorist 
offences”. Such conduct does not seem to accord with any specific offence under the 
Terrorism Directive. It would therefore either overlap with other types of content or 
expand the definition of terrorist content beyond what corresponds strictly to offences 
criminalised  under  the  Terrorism  Directive.  In  addition,  the  term  “encouraging”  is 
vague and does not necessarily correspond to a manifest form of expression inciting 
to  commit  a  terrorist  act  or  support  terrorist  activities.  Rather,  it  is  susceptible  to 
varying  interpretations  based  on  subjective  evaluations.  This  makes  it  particularly 
likely to result in  disproportionate interferences with the freedom of expression, as 
guaranteed by Article 11 of the Charter.  

Article 2 (5) (c) includes in its scope, the promotion of “activities of a terrorist group, 
in particular by encouraging the participation in or support to a terrorist group within 
the meaning of Article 2(3) of Directive (EU) 2017/541”. This formulation is broader 
than  its  counterpart,  in the  Terrorism  Directive, namely  Article  6 on  recruitment  for 
terrorism  in  conjunction  with  Article  4  (b)  which  covers  participation  in  a  terrorist 
group. Article 4 (b) of the Terrorism Directive provides a more concrete definition of 
participation by specifically including “supplying information or material resources” or 
“funding”. It also requires “knowledge of the fact that such participation will contribute 
to the criminal activities of the terrorist group”. The proposal in opposition, lacks these 
concrete  elements  delineating  participation  in  a  terrorist  group.  Notably,  the  open-
ended reference to “support” in proposed Article 2 (5) (c) may result in application to 
content that appears to support the same political or other aims as those of a terrorist 
group, without the content provider having expressed the slightest sympathy for the 
group  or  its  terrorist  tactics.  This  could  impact,  for  example,  on  peaceful  political 
campaigning for self-determination or secession, or other contentious political issues. 

25   United Nations (2018), Mandates of the Special Rapporteur on the promotion and protection of the 
right to freedom of opinion and expression; the Special Rapporteur on the right to privacy and the 
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms 
while countering terrorism, OL OTH 71/2018, 7 December 2018, p. 3. 

                                                 
The  proposal  also  includes  in  its  Article  2  (5)  (d)  information  that  is  “instructing  on 
methods or techniques for the purpose of committing terrorist offences.” Again here, 
the  proposal  deviates  from  the  wording  of  the  Terrorism  Directive  by  providing  a 
broader and more ambiguous definition of terrorist content. Its application, particularly 
outside  the  framework  of  a  criminal  trial,  may  therefore  significantly  increase  the 
likelihood  of  capturing  also  technical,  marketing or  training  materials  which  are  not 
related  to  terrorism.  The  proposal  does  not  define  what  can  be  considered  as  a 
“method”  or  “technique”  for  committing  terrorist  offences  and  is  thereby  open  to 
various interpretations as any type of behaviour can fall under a subjective assessment 
of  this  article.  On  the  contrary,  the  Terrorism  Directive  in  its  equivalent  provisions 
provides for a stricter and more precisely worded formulation. Its Articles 7 and 8 read: 
“instruction on the making or use of explosives, firearms or other weapons or noxious 
or hazardous substances, or on other specific methods or techniques, for the purpose 
of  committing,  or  contributing  to  the  commission  of,  one  of  the  [terrorist  offences 
pursuant to the Directive]”. 

FRA Opinion 1 

The  definition  of  terrorist  content  in  the  proposal  draws  on  definitions  of  terrorist 
offences  under  Directive  (EU)  2017/541  (Terrorism  Directive),  which  are  however 
construed  for  the  purposes  of  criminal  proceedings.  Furthermore,  the  proposal 
deviates  from  the  Directive  in  important  aspects.  Article  2  (5)  (c)  referring  to 
“promoting the activities of a terrorist group”; (d) referring to “instructing on methods 
or  techniques  for  the  purpose  of  committing  terrorist  offences”;  and,  in  particular, 
(b) referring  to  “encouraging  the  contribution  to  terrorist  offences”.  These  all 
potentially  broaden  the  concept  of  terrorist  content  beyond  that  foreseen  by  the 
Terrorism Directive. This gives rise to a risk of unlawful interference with fundamental 
rights, in particular the right to freedom of expression guaranteed in Article 11 of the 
Charter.  

The  EU  legislator  should  ensure  that  the  proposed  Regulation  will  only  apply  to 
content which would manifestly fall under the scope of the Terrorism Directive. For 
this  reason,  the  EU  legislator  should  consider  amending  proposed  Article  2  (5)  as 
follows: 

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

 (a) incites or advocates, including by glorifying, the commission of terrorist 
 offences, thereby causing a danger that such acts be committed; 

 (b)  promotes  the  activities  of  a  terrorist  group,  in  particular  by  inciting, 
soliciting  or  advocating  persons  or  a  group  of  persons  to  participate  in  the 
activities of a terrorist group, including by supplying information or material 
resources, or by funding its activities in any way; or 

 (c) provides instruction on the making or use of explosives, firearms or other 
 weapons or noxious or hazardous substances, or on other specific methods or 
 techniques, for the purpose of committing, or contributing to the commission 
of, terrorist offences.” 

1.2 

Clearly limiting the scope of the proposal to content disseminated 
in the public 

Article  1  (1)  (a)  of  the  proposal  defines  the  subject  matter  and  scope  of  the  new 
Regulation which establishes “rules on duties of care to be applied by hosting service 

providers  in  order  to  prevent  the  dissemination  of  terrorist  content  through  their 
services”. Article 2 (1) of the proposal defines ’hosting service provider’ as an entity 
making “the information stored available to the public”. Proposed Article 2 (6) defines 
”dissemination of terrorist content” as the means of making terrorist content available 
to  third  parties, in a  manner  that  covers  information  society  services  such  as  social 
media platforms, video streaming services, video, image and audio sharing services, 
file sharing and other cloud services. According to Recital (10), any service in which 
information is stored at the request of the recipient of the service, or made available 
to a third party, falls under the scope of the proposal.  

Such a wide formulation  could therefore be interpreted to include  service providers 
that offer services not available to the public.  For example, content stored on cloud 
services that do not make information publicly available, but allow for the sharing of 
uploaded content with another user, or a restricted number of users could be construed 
as making content “available to third parties.” This wording therefore arguably lacks 
sufficient clarity as to what type of service providers it covers. It could well apply to 
business-to-business  cloud  providers,  or  any  cloud-based  service  allowing  users  to 
collaborate with a limited private set of users. It could also be applied to providers of 
VoIP (Voice over Internet Protocol) or electronic messaging services, including emails 
and internet texting as such ‘sound recordings’ are made available to third parties.  

The possibility of this broad application, seems to fall short of the objective echoed in 
Recital  (7)  of  the  proposal  which  ensures  that  any  interference  in  the  freedom  of 
expression  and  information  is  “strictly  targeted.”  Similarly,  it  does  not  meet  the 
requirement of establishing “appropriate and robust safeguards to ensure protection 
of the fundamental rights”. Outlawing any form of expression, either as a derogation 
from the freedom of expression or as a restriction to it, requires an examination of the 
content in light of its context and circumstances under which it was made. It requires 
an assessment of its potential to lead to harmful consequences, and, in particular, of 
its influence and means of dissemination to the wider public.26 Therefore, any content 
not available in the public sphere cannot logically be the subject to this assessment, 
which is required to render it unlawful in and of itself. Any measure aimed at content 
distributed privately, would constitute an unprecedented restriction and interference 
with  the  rights  of  freedom  of  expression  under  Article  11,  and  private  life  and 
correspondence under Article 7 of the Charter. 

Moreover,  this  approach  could  result  in  measures  being  taken  on  a  general  and 
indiscriminate basis even against people for whom there is no objective evidence that 
they participate in, or otherwise support, terrorist activities. In this context, it should 
be  underlined  that  the  relevant  provisions  of  the  Terrorism  Directive  are  restricted 
solely to content disseminated (distributed or otherwise made available) to the public, 
as  the  purposes  of  its  measures  “on  the  internet  is  to  remove  online  content 
constituting a public provocation to commit a terrorist offence at its source.”27  

FRA Opinion 2 

Unlike the Terrorism Directive which covers content disseminated to the “public”, the 
proposal applies to any content that becomes “available to third parties”. This broad 
formulation  means  that  the  Regulation  could  be  interpreted  as  applying  to  private 
communication – emails, private messaging and cloud infrastructure services – which 

26   ECtHR, Stomakhin v. Russia, No. 52273/07, 9 May 2018, paras. 93, 131; ECtHR, Bidart v. France, No. 
52363/11, paras. 35, 45; ECtHR, Roj TV A/S v. Denmark, No. 24683/14, 17 April 2018, para. 47. 

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

                                                 
would represent a disproportionate and unjustified interference with the freedom of 
expression and information under Article 11 of the Charter and the right to private and 
family life under Article 7 of the Charter. 

The  EU  legislator  should  ensure  that  the  proposed  Regulation  does  not  apply  to 
expression which  does not  enter the public domain, disproportionately  interfering 
with  the  rights  to  freedom  of  expression  and  private  life  and  correspondence  of 
internet users at large. Accordingly, the EU legislator should consider: 

 

 

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

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

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

1.3 

Excluding  certain  forms  of  expression  from  the  scope  of  the 
proposal 

Recital  (9)  of  the  proposal  underlines  that  “[c]ontent  disseminated  for  educational, 
journalistic  or  research  purposes  should  be  adequately  protected.  Furthermore,  the 
expression of radical, polemic or controversial views in the public debate on sensitive 
political questions should not be considered terrorist content”. This acknowledgement 
reflects ECtHR jurisprudence which requires particular caution to such protected forms 
of  speech  and  expression,  including  also  artistic  expression.28  In  particular,  the 
jurisprudence recognises the right of journalists to report or comment on such unlawful 
speech  or  content,  provided  they  distance  themselves  and  do  not  espouse  it.29 
Extensive restrictions on journalists “for assisting in the dissemination of statements 
made by another person in an interview would seriously hamper the contribution of 
the press to discussion of matters of public interest and should not be envisaged unless 
there  are  particularly  strong  reasons  for  doing  so”.30  In  addition,  the  Committee  of 
Ministers  of  the  Council  of  Europe  has  recommended  to  avoid  the  universal  and 
general blocking of illegal content for users who justifiably demonstrate a legitimate 
interest or need to access such content under exceptional circumstances, particularly 
for research purposes.31 

However,  Recital  (9)  of the  proposal  is  not  reflected  in  the  operative  provisions  by 
providing  an  exception  for  such  purposes.  Indeed,  there  may  well  be  instances 
whereby content that could be classified as  ’terrorist’ needs to be disseminated for 
journalistic, research, educational or other similar purposes. For example, it is usual for 
journalists to report or disseminate parts of content produced by terrorists, usually in 
a redacted or further processed form, to inform the public. Appropriate dissemination 
of such content can have a dissuasive effect on terrorist activities by informing the 
public of their criminal acts and reinforcing public rejection of terrorist activities. The 
same applies for research institutions and individuals studying terrorist activities and 
providing findings that can inform counter-terrorism policies, as well as for many forms 
of literary or artistic expression. 

28   ECtHR, M’Bala M’Bala v. France, No. 25239/13, 20 October 2014, para. 31. 
29   ECtHR, Roj TV A/S v. Denmark, No. 24683/14, para. 42; ECtHR, Jersild v. Denmark, No. 15890/89, 23 

September 1994, paras. 33-36. 

30   ECtHR, Jersild v. Denmark, No. 15890/89, 23 September 1994, para. 35. 
31   Council of Europe (2008), Recommendation CM/Rec(2008)6 of the Committee of Ministers to 

member states on Measures to promote the respect for freedom of expression and information with 
regard to Internet filters, para. III (vi). 

                                                 
The Terrorism Directive also recognises the need to exclude such content in Recitals 
(11) and (40) rather than in the operative provisions. This can be, however, explained 
by  the  difference  between  the  two  instruments.  The  Terrorism  Directive  is  applied 
during  criminal  proceedings,  where  such  issues  would  be  considered  in  relation  to 
intent  (an  element  not  required  by  the  proposal);  furthermore  the  different  legal 
nature  of  directives  foresees  that  detailed  rules  are  established  as  part  of  the 
transposition  into  the  national  legal  framework. As a  regulation,  the  proposed  legal 
instrument would not allow for national legislators to introduce such exception clauses 
into their national legislation. 

In fact, national legislations usually require such exceptions. For example, the German 
legislator  included similar  exceptions  in  the  Criminal  Code  that apply  to offences  of 
disseminating propaganda material of unconstitutional organisations; encouraging the 
commission of a serious violent offence endangering the state; incitement to hatred; 
and attempting to cause the commission of offences by means of publication.32  

Expressing  this  important  principle  only  in  a  recital  cannot  itself  ensure  that  such 
protected  forms of  expression are adequately  respected.  It  also  cannot  ensure  that 
content which appears at first unlawful, can be used for legitimate purposes, notably 
journalism or research. 

FRA Opinion 3 

The preamble of the proposal acknowledges the need to ensure that certain protected 
forms of expression are respected. Nevertheless, the proposal lacks provisions that 
would explicitly oblige competent authorities and courts to exclude dissemination of 
content  for  legitimate  purposes,  notably  informing  the  public  of  matters  of  public 
interest  and  promoting  education,  academic  and  scientific  research,  or  literary  or 
artistic expression. 

The  EU  legislator  should  ensure  that  forms  of  expression  such  as  journalistic, 
academic and artistic expression are adequately protected, such as by considering 
introducing in Article 1 of the proposal a new paragraph (3), in line with Recital (9), 
providing  that  “Content  disseminated  for  educational,  journalistic,  artistic  or 
research purposes or awareness raising activities against terrorism is excluded.” 

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

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

                                                 
2  Strengthening  fundamental  rights  safeguards  on 

removal orders  

Article  4  of  the  proposal  provides  for  the  power  of  a  competent  authority  of  any 
Member State to issue a decision requiring the hosting service provider to remove or 
disable  access  to  terrorist  content.  These  orders  are  addressed  to  hosting  service 
providers  who  are  under  the  obligation  to  comply  within  one  hour.  This  Chapter 
examines the main elements of the removal order mechanism. It looks at the nature 
of the issuing body and a lack of a clear requirement for independent and impartial 
judicial oversight, including cross-border removal orders; the mandatory nature of the 
order; the one-hour limit to remove or block access to content identified as terrorist; 
the need to provide sufficient information to content providers and the obligation to 
preserve content that has been removed or disabled. 

The  Chapter  addresses  fundamental  rights  challenges  in  the  context  of  freedom  of 
expression and information under Article 11 and freedom to conduct a business under 
Article 16 of the Charter; the right to respect for private life under Article 7 and the 
right to protection of personal data under Article 8 of the Charter, as well as the right 
to an effective remedy to potential violations of these rights under Article 47 of the 
Charter. 

2.1 

Safeguarding  fundamental  rights  through  effective 
supervision  

judicial 

According to Article 11 of the Charter, freedom of expression and information includes 
the freedom to hold opinions and to receive and impart information and ideas without 
interference  by  a  public  authority.  As  underlined  in  the  Introduction,  incitement  to 
violence is excluded from the protective scope of the freedom of expression.33 The 
ECtHR  has  nevertheless  construed  this  exclusion  narrowly,  also  in  the  context  of 
potential  terrorist  content.  It  requires  that  safeguards  are  in  place  and  states  that 
difficulties related to the fight against terrorism do not negate the obligation to ensure 
freedom  of  expression;  and  only  restrictions  that  are  necessary  and  proportionate 
should be applied.34  

The ECtHR has emphasised the importance of judicial intervention in cases related to 
the freedom of expression to provide a genuine safeguard against abuse.35 In Ekin v. 
France, the ECtHR ruled that judicial review of administrative publishing bans which 
only  took  place  ex  post  and  required  an  application  to  court,  together  with  an 
excessive length of such review proceedings, provided insufficient guarantees against 
abuse.36 Also when assessing the nature of online content and the need for its removal, 
an independent judicial authority would be best placed to make an impartial decision 
to meet public security needs without violating fundamental rights. This is of particular 
importance for measures that have an immediate effect on fundamental rights while 
a  subsequent  remedy  may  have  limited  restorative  effect,  such  as  prolonged 
proceedings eventually leading to the restoration of online content.37 

33   ECtHR, Belkacem v. Belgium, No. 34367/14, 27 June 2017. 
34   ECtHR, Perinçek v. Switzerland [GC], No. 27510/08, 15 October 2015, para. 197. 
35   See for example ECtHR, Bidart v. France, No. 52363/11, 12 November 2015, paras. 38-41. 
36   ECtHR, Association Ekin v. France, No. 39288/98, 17 July 2001, para 61. 
37   See e.g. Kuczerawy, A., The Proposed Regulation on preventing the dissemination of terrorist 
content online: safeguards and risks for freedom of expression, Center for Democracy and 
Technology, 5 December 2018, p. 10. 

 
                                                 
The proposal does not require any involvement of an independent judicial authority in 
the issuing of, or prior to the execution of, removal orders, i.e. before the interference 
with fundamental rights takes place, to assess its necessity and proportionality. In the 
absence of a definition of the ‘competent authorities’, Recital (13) merely states that 
“Member  States  should  remain  free  as  to  the  choice  of  the  competent  authorities 
allowing them to designate administrative, law enforcement or judicial authorities with 
that task.” The Explanatory Memorandum to the proposal underlines this by stating 
that the removal order  can be issued “as an administrative or judicial decision by a 
competent authority in a Member State.”38 

At the same time, none of the parties involved have a realistic opportunity to initiate 
a review of the legality of the order and its interference with fundamental rights prior 
to the removal of the content.  

As  regards  the  content  providers,  whose  freedom  of  expression  and  information  is 
primarily affected by the removal, the proposal foresees only notifying the removal or 
disabling of access that has already taken place, further limited in Article 11 (see also 
Section 2.4). While excluding the content provider at this stage might be legitimate in 
light of the nature of the public interest involved, it reinforces the need for alternative 
safeguards. 

The need to protect individuals’ fundamental rights without alerting them to the actual 
existence of a security measure in order not to jeopardise a legitimate public interest 
is not unique. A parallel could be drawn, for example, with the use of surveillance and 
communication  interception  measures  by  intelligence  authorities outside  of  the law 
enforcement context. In such cases, the ECtHR acknowledged that the very nature and 
logic  of  secret  surveillance  measures  often  means  that  in  practice,  individuals  are 
simply not able to effectively seek a remedy of their own accord or to take a direct 
part in any review proceedings. In such cases, it is therefore essential to provide some 
form of judicial supervision in order to safeguard adequate and equivalent guarantees 
for the rights of individuals.39 

Hosting  service  providers  are  also  not  foreseen by  the  proposal to  make  their  own 
assessment  of  the  removal  orders  and,  where  relevant,  contest  them.  Instead,  the 
proposal  foresees  their  automatic  compliance  with  the  measure.  The  Explanatory 
Memorandum states that such orders “would not necessarily require an assessment 
on  the  part  of  the  hosting  service  providers”.40  The  Impact  Assessment  makes  the 
same argument in relation to costs, stating that costs and burdens for hosting service 
providers  would  be  mitigated  because  the  competent  authority  would  assess  the 
content and providers would not  need to invest resources to make the assessment 
themselves.41 

The only exceptions from the mandatory nature of the removal orders foreseen by the 
proposal relate to force majeure or other de facto impossibility not attributable to the 
hosting service provider (Article 4 (7)), or manifest errors or insufficient information 
in the removal order itself (Article 4 (8)).  Such “manifest errors”  of removal orders 

38   Explanatory Memorandum to the proposal, p. 4. 
39   ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015; ECtHR, Szabo and Vissy v. 

Hungary, No. 37138/14, 12 January 2016. 
40   Explanatory Memorandum to the proposal, p. 7. 
41   European Commission (2018), Commission Staff Working Document – Impact Assessment 

Accompanying the Document Proposal for a regulation of the European parliament and of the 
Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels, 
12 September 2018, pp. 42 and 103. 

                                                 
apparently  do  not  extend  to  the  potential  erroneous  assessment  of  the  content  as 
“terrorist”  by  the  competent  authority,  as  hosting  service  providers  will  not  be 
provided with sufficient information about the assessment. Although Article 4 (3) (b) 
requires  the  authority  to  state  why  the  content  is  considered  terrorist,  this  can  be 
limited to referring to one of the broadly conceived categories listed in Article 2 (5) 
(see  Section  1.1).  The  competent  authority  has  the  obligation  to  give  a  detailed 
statement of reasons, only in cases where the hosting service provider or the content 
provider  so  request.  Pursuant  to  proposed  Article  4  (4),  this  does  not,  however, 
suspend the one-hour limit for complying with the removal order. 

This means that even when hosting service providers consider that the right of their 
users  to  freedom  of  expression  and  information  or  their  own  right  to  conduct  a 
business (see Section 2.2) would be disproportionately affected by complying with the 
removal order, they would not be able to effectively contest the removal order. 

Given  this  degree  of  automatism  to  the  implementation  of  removal  orders  and  the 
potential level of interference with fundamental rights that issuing of removal orders 
entails,  the  measure  should  be  conceived  in  a  manner  that  directly  integrates  the 
supervision  by  a  judicial  authority.  Ensuring  that  every  competent  authority  issuing 
removal orders is of judicial nature would provide the most  adequate and effective 
guarantees against rights violations. If this option is not feasible in the context of the 
given national legal order, speedy judicial review should take place immediately after 
the  removal  order  is  issued  and  ideally,  before  the  content  is  actually  removed  or, 
shortly thereafter. In such cases, the proposal would need to establish a procedure for 
restoring  the  content  in  situations  where  the  hosting  service  provider  receives  a 
negative decision of the independent judicial authority after the content has already 
been removed or access to it disabled.  

FRA Opinion 4 

Removal  orders  as  regulated  in  Article  4  of  the  proposal  require  hosting  service 
providers to remove or disable access to content identified by the competent authority 
as  terrorist.  The  proposal  does  not  guarantee  any  type  of  involvement  of  an 
independent judicial authority in the adoption or prior to the execution of the removal 
order. At the same time, neither the content provider nor the hosting service provider 
are  afforded  a  mechanism  to  effectively  challenge  the  order  before  the  removal  is 
carried out. Combined with the limitations on access to an effective remedy once the 
removal  has  already  taken  place,  this  offers  insufficient  protection  to  the  rights  at 
stake, in particular freedom of expression and information and freedom to conduct a 
business under Articles 11 and 16 of the Charter. 

In  order  to  ensure  that  removal  orders  are  always  based  on  an  independent  and 
impartial  assessment,  the  EU  legislator  should  prescribe  that  the  competent 
authority  responsible  for  issuing  removal  orders  be  an  independent  judicial 
authority. 

Alternatively, the EU legislator could consider: 

  amending Article 4 (1) by stating that where the competent authority is not 
a  judicial  authority,  or  where  the  removal  order  is  not  based  on  a  judicial 
authority’s  decision,  the  removal  order  addressed  to  the  hosting  service 
provider shall be at the same time submitted for review to an independent 
judicial  authority  determined  in  accordance  with  national  law;  this  judicial 
authority  shall  notify  the  competent  authority  and  the  hosting  service 

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

  adding in Article 4 (2) that where the judicial authority conducting a review 
pursuant  to  paragraph  (1)  issues  a  decision  that  does  not  confirm  the 
removal  order’s 
legality,  the  competent  authority  shall  ensure  the 
immediate  restoration  of  such  content,  provided  it  has  already  been 
removed or access to it disabled. 

2.2 

Avoiding  disproportionate  impact  on  the  freedom  to  conduct  a 
business 

From  the  perspective  of  the  hosting  service  providers,  the  introduction  of  removal 
orders as set out in the proposed Regulation would represent an interference with the 
freedom to conduct a business, as recognised in Article 16 of the Charter.42  

This  Charter  right  is  based  on  CJEU  case  law  which  has  recognised  the  freedom  to 
exercise  an  economic  or  commercial  activity,  the  freedom  of  contract  and  free 
competition.  This  right  is  to  be  exercised  with  respect  for  Union  law  and  national 
legislation. As a non-absolute right, it may be subject to restrictions in line with Article 
52 (1) of the Charter where they correspond to objectives of public interest pursued 
by the EU and (do) not constitute, in relation to the aim pursued, a disproportionate 
and  intolerable  interference,  impairing  the  very  substance  of  the  rights  thus 
guaranteed.  The  CJEU  has  already  established  that  the  fight  against  terrorism 
constitutes  such  an  objective.43  The  obligation  to  comply  with  removal  orders 
nevertheless needs to strike fair a balance between the right to conduct a business 
and the legitimate aim of combating online terrorist content in order to ensure that the 
limitations on the right are not disproportionate. 

It is noteworthy that while the Explanatory Memorandum identifies the freedom to 
conduct a business as the key right of the service providers affected by the proposal, 
it is referenced in Recital (19) relating to proactive measures, but not in the relevant 
recitals relating to removal orders. 

The mandatory nature of removal orders (see also Section 2.1) is underlined by the 
exposure  of  hosting  service  providers  to  penalties  in  case  of  non-compliance.  Such 
sanctions are envisaged in Article 18 of the proposal, but are further undefined and 
left  at  the  discretion  of  Member  States.  This  would  expose  the  hosting  service 
providers to a considerable degree of uncertainty. 

Hosting service providers are expected to bear the costs of compliance with removal 
orders. These include, for example, costs incurred due to technical modalities that will 
need to be put in place to remove or block the content and receive the orders. They 
also include the costs for necessary personnel to address the orders (i.e. extra working 
time or additional personnel). This interference with the right to conduct a business is 
specifically acknowledged in the Impact Assessment accompanying the proposal, in 

42   For a further analysis of this right, see FRA (2015), Freedom to conduct a business: exploring the 
dimensions of a fundamental right, Luxembourg, Publications Office of the European Union.  
43   CJEU, Kadi and Al Barakaat International Foundation v Council and Commission of the European 

Communities, Cases C‑402/05 P and C‑415/05 P, 3 September 2008, para. 363; CJEU, Al-Aqsa v 
Council and Pays-Bas / Al-Aqsa, Case C-539/10 P, 15 November 2012, para. 130; CJEU, Digital Rights 
Ireland and Seitlinger and Others, Case C-293/12, 8 April 2014, para. 42. 

                                                 
particular with regard to the one-hour rule. It is specifically noted that “the major costs 
are those related to the application of the one-hour deadline for removal order”.44  

The one-hour limit is proposed, according to Recital (13), due to the “speed at which 
terrorist  content  is  disseminated  across  online  services.”  It  will  require  all  relevant 
businesses, irrespectively of their size, to have in place mechanisms allowing them to 
comply with removal orders on a 24/7 basis. This will be particularly burdensome for 
small and medium-sized enterprises. According to the available data in Europe almost 
10,000 hosting service providers are small, medium or micro enterprises (the latter 
being half of the total). Also, nearly 70% of Europol referrals in 2018 were addressed 
to such enterprises.45 Most of these follow daily schedules according to the time zone 
of the state where they are located. Complying with such orders outside their working 
hours and days will require even micro enterprises to employ staff that work on a 24/7 
basis.  For  online  platforms  or  applications  –  especially  the  latter  –  the  technical 
specificities  required  may  even  outweigh  the  costs  incurred  to  set  up  the  platform 
initially.  The  one-hour  rule  therefore  carries  a  serious  risk  of  undermining 
disproportionately the freedom to conduct a business, especially for small, medium or 
micro enterprises and individual entrepreneurs. This potentially puts these enterprises 
at a competitive disadvantage due to the major changes in their modus operandi, and 
the necessary investments, required to comply with the obligation.  

In  addition,  in  order  to  reduce  the  associated  costs  and  ensure  compliance  outside 
regular  working  hours,  some  enterprises  may seek  to  automate this  process  to  the 
extent  possible, potentially  complying  even  with  those  removal  orders  that  contain 
manifest errors, i.e. where it would otherwise be possible and legitimate to postpone 
the removal until the competent authority provides a clarification. This could further 
increase  the  risk  of  removing  legitimate  content  and  a  violation  of  the  freedom  of 
expression and information. 

Other  than  the  general  reference  in  Recital  (13),  the  proposal  does  not  further 
elaborate  on  the  proportionality  of  the  one-hour  limit  necessary  to  attain  the 
objectives  of  the  proposal.  It  also  does  not  provide  arguments  to  support  the 
harmonising  nature  of  the  proposed  limit.  Available  evidence  from  the  Council  of 
Europe  concludes  that  such  orders  require  action  on  the  part  of  hosting  service 
providers usually  within  24  hours  or  more.46  For  EU  Member  States,  the time  limits 
vary between 24 hours (e.g. France) and two working days (e.g. UK). In some Member 
States, a general period may be shortened in case of manifestly illegal content (e.g. 
from seven days to 24 hours in Germany).47 

It is conceivable that there may indeed be specific cases where content is not only 
manifestly illegal but also poses an imminent threat, such as inciting the commission 
of a terrorist attack in relation to an event that will take place shortly (e.g. a specific 
concert  or  a  sports  event).  In  such  exceptional  cases,  it  may  be  legitimate  for  the 

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

Accompanying the Document Proposal for a regulation of the European parliament and of the 
Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels, 
12 September 2018, pp. 36-37, also p. 103. 

45   Ibid, p. 36. 
46   Council of Europe (2016), Comparative study on blocking, filtering and take-down of illegal internet 
content, Document and Publications Production Department, Council of Europe, 15 Αpril 2016, p. 16. 

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

Accompanying the Document Proposal for a regulation of the European parliament and of the 
Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels, 
12 September, p. 116 et seq. 

                                                 
competent authority to have the possibility to apply shorter time limits, possibly as 
short as one hour. When deciding on the concrete deadline, the competent authority 
would nevertheless need to take into account the time zone, working days and hours 
of the hosting service provider addressed by the measure. 

Outside these exceptional cases, in light of the existing standards described above as 
well  as  the  impact  on  the  freedom  to  conduct  a  business  and  the  freedom  of 
expression,  the  proposed  time  limit  does  not  appear  to  be  proportionate  to  the 
intended aim. This is especially true if applied to all types of businesses (including, for 
example, smaller businesses that provide services to a smaller number of users where 
the  content  is  not  publicly  available  to  larger  groups  of  persons)  and  all  types  of 
content, irrespectively of the content’s potential to cause an imminent threat. It would 
therefore  appear  proportionate  to  introduce  a  harmonised  time  limit  aligned  with 
those currently applied by Member States, such as 24 hours. 

FRA Opinion 5 

The proposed rules for the implementation of removal orders will have considerable 
implications on the operation of hosting service providers. The time limit of one hour 
to comply with the removal order, which applies to all host service providers and any 
content – irrespective of whether it poses an imminent threat – is significantly stricter 
than  the  current  practice  among  EU  Member  States. 
It  may  represent  a 
disproportionate restriction to the freedom to conduct a business under Article 16 of 
the  Charter,  especially  with  regard  to  smaller  businesses.  It  could  also  lead  to 
automation in the processing of removal orders, with a further negative impact also 
on the freedom of expression and information of users under Article 11 of the Charter. 

In  order  to  avoid  disproportionate  impact  of  removal  orders  on  the  operation  of 
hosting  service  providers  and  the  risk  of  further  negative  effects  on  fundamental 
rights, the EU legislator should consider: 

  amending Article 4 (2) of the proposal as follows: “Hosting service providers 
shall remove terrorist content or disable access to it within twenty-four (24) 
hours from receipt of the removal order. In exceptional circumstances where 
the  competent  authority  stipulates  in the  removal order  that the  particular 
content  poses  an  imminent  threat,  hosting  service  providers  shall  remove 
terrorist content or disable access to it within a period shorter than twenty-
four  (24)  hours  from  receipt  of  the  removal  order.  The  period  shall  be 
specifically defined by the competent authority in the removal order; and it 
cannot be less than one hour from receipt of the removal order, taking into 
account  the  time  zone,  working  days  and  hours  of  the  addressee  hosting 
service provider.”  

  amending Article 4 (4) of the proposal to provide that the detailed statement 
of reasons should contain, where applicable, also the reasons which require 
removing of the content or blocking access to it within less than twenty-four 
hours. 

2.3 

Ensuring additional safeguards in cross-border removal orders by 
involving the authorities and courts of the host Member State  

The  proposed  Regulation  sets  out  a  system  according  to  which  a  removal  order 
addressed to the hosting service provider can be issued by a competent authority of 
any EU Member State. This is not necessarily the Member State in which the provider 

has its main establishment or in which it has designated a legal representative (Article 
4  (5)  and  Recital  (34)  of  the  proposal).  This  direct  interaction  between  a  service 
provider and the issuing Member State without any involvement of the host Member 
State,  continues  also  in  the  context  of  actual  enforcement  of  the  removal  order. 
Indeed, where an authority of another Member State has issued a removal order, that 
Member State has jurisdiction to take coercive measures according to its national law 
in order to enforce the removal order (Article 15 (3)). Also, the possibility for hosting 
service providers (as well as content providers) to contest the removal orders can only 
take place before the court of the Member State whose authorities issued the removal 
order. No one can challenge a removal order in front of a court in the Member State 
of  the  service  provider’s  establishment  (or  in  which  it  has  designated  a  legal 
representative), the reason being that the authorities of this state are not involved in 
the procedure leading up to a binding removal order. 

This  legal  construction  raises  concerns  from  the  fundamental  rights  perspective,  in 
particular  in  light  of  the  well-established  case  law  of  the  ECtHR  on  the  state 
responsibility and effective remedies. According to Article 1 of the ECHR, Contracting 
States shall secure to everyone within their jurisdiction the rights and freedoms set 
out  in  the  ECHR.  This introduces a  very  clear  rule  on  the  responsibility  of  states  for 
what happens within their jurisdiction. It means that Article 13 of the ECHR read in light 
of Article 1 of the ECHR gives individuals a right to an effective remedy in the territory 
where  they  claim  that  their  rights  were  abused  without  having  to  turn  to  another 
Contracting  State.  In  the  Charter,  the  right  to  an  effective  remedy  is  encompassed 
under  Article  47.  Article  52  (3)  of  the  Charter  confirms  that,  where  Charter  rights 
correspond  to  ECHR  rights,  the  meaning  and  scope  of  those  rights  are  the  same 
(although more extensive protection can be provided).  A smooth functioning of the 
digital single market in an open and democratic society, which represents  the legal 
basis for the proposal, should not in any way undermine these obligations. 

Applying  these  principles  as  well  as  the  relevant  ECtHR  case  law  standards  to  the 
situation  covered  by  the  draft  Regulation,  the  Member  State  which  did  not  issue  a 
removal order but in which the provider has its main establishment (or in which it has 
designated  a  legal  representative)  is  fully  accountable  under  the  ECHR  for 
infringements  of  the  rights  of  persons  within  its  jurisdiction  “as  a  result  of  acts 
performed  by  foreign  officials  with  that  State’s  acquiescence  or  connivance”.48  The 
ECtHR’s findings that a court in the host Member State must be “empowered to conduct 
a  review  commensurate  with  the  gravity  of  any  serious  allegation  of  a  violation  of 
fundamental rights in the State of origin [issuing Member State], in order to ensure that 
the protection of those rights is not manifestly deficient” 49 , rules out situations where a 
service  provider  in  Member  State  “A”  is  bound  by  a  removal  order  issued  by  an 
authority of Member State “B” without having any remedy available in their Member 
State “A”. 

FRA Opinion 6 

In cases of cross-border removal orders, the proposal creates a system in which an 
order issued by one Member State cannot be challenged in the Member State in which 
the  hosting  service  provider  is  established  (or  in  which  it  has  a  designated  legal 
representative). In line with the basic principles of territorial  jurisdiction and related 
ECtHR case law, the host Member State must be empowered to review the removal 

48   ECtHR, Husayn (Abu Zubaydah) v. Poland, No. 7511/13, 24 July 2014, para. 479. 
49   ECtHR, Avotiņš v. Latvia, No. 17502/07, 23 May 2016, para. 114. 

                                                 
order in cases where there are reasonable grounds to believe that fundamental rights 
are impacted within its own jurisdiction. At the same time, in line with the right to an 
effective remedy enshrined in Article 19 TEU and Article 47 of the Charter, each natural 
or legal person has the right to an effective remedy before the competent national 
tribunal  against  any  of  the  measures  which  can  adversely  affect  the  rights  of  that 
person.  Accordingly,  the  right  should  include  the  possibility  for  hosting  service 
providers  and  content  providers  to  effectively  contest  the  removal  orders  before  a 
court of the host Member State, where it is different from the issuing Member State.  

The EU legislator should ensure that cross-border removal orders are regulated in a 
manner  which  provides  sufficient  safeguards  to  the  affected  fundamental  rights, 
including  by  providing  access  to  an  effective  remedy.  The  EU  legislator  should 
address this explicitly in the relevant substantive provisions by: 

 

 

2.4 

requiring  the  issuing  Member  State  to  notify  competent  authorities  in  the 
host  Member State,  alongside the  hosting service provider,  of the removal 
order when it is issued;  

introducing additional safeguards to ensure access to an effective remedy, by 
providing in substantive articles for the possibility of effectively challenging 
the removal order before a competent court of the host Member State.  

Providing  sufficient 
a precondition for exercising the right to an effective remedy  

to  content  providers  as 

information 

Under  EU,  Council  of  Europe  as  well  as  UN  law,  the  right  of  access  to  a court  is  an 
important  element  of  access  to  justice  given  that  courts  provide  protection  against 
unlawful practices and uphold the rule of law.50 Article 14 of the International Covenant 
on Civil and Political Rights (ICCPR) provides for a general guarantee of equality before 
courts and tribunals that applies regardless of the nature of proceedings before such 
bodies.51 Article 13 of the ECHR offers protection to individuals who wish to complain 
about alleged violations of their rights under the ECHR, by providing for an effective 
remedy  before  a  national  authority.  The  national  authority  does  not  have  to  be  a 
judicial  authority;  however,  it  is  accepted  that  judicial  remedies  “furnish  strong 
guarantees  of  independence,  access  for  victims  and  families,  and  enforceability  of 
awards in compliance with the requirements of Article 13.”52 Article 47 of the Charter 
embodies  the  EU general  principle  of  law  whereby  Member  States  must  ensure 
effective protection of an individual’s rights arising from Union law, including Charter 
rights, by providing for an effective remedy before a tribunal.  

Article  47  of  the  Charter  requires  that  remedies  shall  be  effective  and  have  a 
reasonable prospect of success. The obligation to inform can generally be perceived 
as  a  strong  safeguard  for  ensuring  the  effectiveness  of  a  remedial  action,  and, 
ultimately, legal scrutiny by judicial bodies. Effective judicial review presupposes that 
those affected are able to defend their rights under the best possible conditions. They 
also have the possibility of deciding, with full knowledge of the relevant facts, whether 

50   See also: FRA (2016), Handbook on European law relating to access to justice, p. 26. 
51   UN Human Rights Committee (UN HRC), General Comment No. 32, Article 14, Right to equality 

before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32. 

52   ECtHR, Z and Others v. the United Kingdom [GC], No. 29392/95, 10 May 2001, para. 110. 

                                                 
there is any point in applying to the courts. Hence, competent authorities are under a 
duty to inform those affected of the reasons behind the decision.53 

According to CJEU case law, the review guaranteed by Article 47 of the Charter first 
requires full knowledge by the individual of the information on which the decision is 
based.  The  adversarial  principle  shall  be  complied  with,  so  that  the  individual  can 
decide whether there is an argument to make against the decision. At the same time, 
for overriding reasons connected to national security, it may prove necessary not to 
disclose  certain  information  to  the  individual.  However,  the  court  shall  be  able  to 
review whether the invoked reasons are valid, and the Member States’ authority shall 
prove  that  the  disclosure  of  the  information  would  compromise  national  security. 
There is no presumption that the reasons invoked exist and are valid.54  

The information obligation of the competent authority under the proposal is limited to 
the  information  provided  to  the  hosting  service  provider  in  the  removal  order. 
According  to  proposed  Article  4  (4),  a  “detailed  statement  of  reasons”  can  be 
requested  by  the  hosting  service  provider  or  content  provider.  This,  however, 
presupposes the existing knowledge of the content provider about the removal. At the 
same  time,  the  proposal  does  not  establish  any  obligation  to  inform  the  content 
provider about available legal remedies, as information about possible redress is only 
provided  as  part  of  the  removal  order  which  is  not  communicated  to  the  content 
provider. 

The obligation to inform the content provider is therefore left primarily to the hosting 
service provider. Recital (26) of the proposal, referencing the need to ensure effective 
legal protection according to Article 19 TEU and Article 47 of the Charter, states that 
hosting service providers should make “meaningful information enabling the content 
provider to contest the decision” available to the content provider. Article 11 (1) of 
the  proposal,  however,  limits  this  to  information  “on  the  removal  or  disabling  of 
access”.  Recital  (26)  clarifies  that  this  obligation  does  not  necessarily  require  the 
content provider to be notified directly but can be fulfilled, for example, by replacing 
the removed content with a message that the content has been removed or disabled. 
Further  information  about  the  reasons  for  removal  and  possibilities  to  contest  the 
decision is given by the hosting service provider upon request of the content provider. 
According to proposed Article 11 (3), such information may not be given for reasons 
of public security, such as the prevention, investigation, detection and prosecution of 
terrorist offences. This derogation is restricted to the time necessary, not exceeding 
four weeks.  

This situation where the content provider can at different stages and predominantly 
upon request receive partial information about the decision leading to the removal and 
the avenues of redress, does not allow individuals to effectively exercise their right to 
judicial  protection.  The  information  necessary  for  that  purpose  would  include,  in 
particular, the identification of the competent authority issuing the removal order; the 
competent  courts  to  decide  on  legal  remedies  against  removal  orders  and  the 
applicable  time  limits;  the  statement  of  reasons  by  the  competent  authority;  the 
Uniform Resource Locator (URL) and any additional information identifying the content 
referred; the legal basis on which the order was issued and any information about its 
authenticity.  This  information  is  to  some  extent  contained  in  the  removal  order. 

53   CJEU, Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v. 

Georges Heylens and Others, C-222/86, 15 October 1987, para. 15. 

54   CJEU, ZZ v. Secretary of the State of Home Department, C-300/11, 4 June 2013, paras. 53-54, 57, 61 

and 64. 

                                                 
However,  Articles  4  (4)  and  11  (2)  of  the  proposal  do  not  secure  that  the  content 
provider would at any stage of the procedure, even upon request, receive the removal 
order. Without access to the removal order, the vague information on “possibilities to 
contest the decision” which should be granted by the host service provider only upon 
the  request  of  the  content  provider,  does  not  appear  to  be  sufficient  to  seek  legal 
remedy.  

FRA Opinion 7 

The proposal does not ensure that the content provider receives a copy of the removal 
order, which represents the legal basis for the removal, contains important information 
not available through other means, and would be necessary to challenge the measure 
effectively  before  the  courts.  Neither  does  it  ensure  that  the  content  provider  is 
informed  about  the  available  legal  remedies  against  such  orders.  Therefore,  the 
proposal does not guarantee that content providers have full knowledge of all relevant 
facts needed to decide whether and on what grounds they will challenge the removal 
order. As a result, the proposed Regulation does not provide for minimum safeguards 
ensuring the effectiveness of a remedial action and legal scrutiny by judicial bodies in 
line with Article 47 of the Charter.  

The EU legislator should ensure that the content provider can receive, at the latest 
after the removal or disabling of access to the content, a copy of the removal order 
and information about available legal remedies to effectively exercise its right under 
Article 47 of the Charter. For this reason, the EU legislator should consider amending: 

  Recital (26) fifth sentence, to state: “Further information about the reasons 
for the removal, as well as a copy of the removal order and information of 
the possibilities for the content provider to contest the decision before a court 
should be given upon request.” 

  Article 4 (4), to state: “Upon request by the hosting service provider or by the 
content  provider,  the  competent  authority  shall  provide  a  copy  of  the 
removal order including a detailed statement of reasons, and any information 
about the available legal remedies to appeal against removal orders before a 
court, without prejudice to the obligation of the hosting service provider to 
comply with the removal order within the deadline set out in paragraph 2.” 

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

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

2.5 

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

Article  7  of  the  proposal  requires  hosting  service  providers  to  preserve  removed 
content and any related data following a removal order. Authorities can then access 
such data for investigative and prosecutorial purposes. According to Recital (20), these 
data include subscriber data (e.g. IP address, names and addresses) and access data 
(date  and  time  of  any  communications).  Access  to  such  data  represents  an 
interference with the protection of personal data and the right to private life, enshrined 
in Articles 7 and 8 of the Charter.55 Such an interference may be justified and necessary 

55   CJEU, Digital Rights Ireland and Seitlinger and others [GC], Joined cases C-293/12 and C-594/12, 8 April 

2014, paras. 34-36; CJEU, Ministerio Fiscal, C‑207/16, 2 October 2018, para. 51. 

                                                 
as it pursues an “objective of general interest”, since these data will most probably 
have probative value for investigative purposes56 or represent a safeguard in case of 
erroneous removal (false positives). Nevertheless, the proposed Regulation does not 
stipulate the conditions of access to data preserved by authorities. Recital (23) merely 
refers to national law, which will regulate such access and will, therefore, fall within 
the scope of EU law.57 In this regard, the CJEU has unequivocally held in Tele2 Sverige 
AB, which concerned access to data retained for criminal purposes  that such access 
must be subject to “a prior review by a court or an independent administrative body, 
except in cases of validly established urgency”.58 Similarly, the lack of this requirement 
was  one  of  the  reasons  the  CJEU  annulled  Directive  2006/24/EC  (Data  Retention 
Directive)59 in 2014.60 

Article  7  of  the  proposal  foresees  that  the  terrorist  content  and  related  data  are 
preserved for six months, which can be extended to allow review procedures to be 
finalised.  However,  the  proposal  does  not  contain  a  clear  requirement  of  the 
destruction  of  the  data  once  this  period  expires.  This  creates  a  danger  that  data 
preserved  will  not  be  erased  and  therefore,  will  be  susceptible  to  abuse,  e.g. 
unauthorised  use  or  access.  The  ECtHR  has  established  that  limited  and  clearly 
prescribed rules should regulate both the duration of the storage time of such data, as 
well as their subsequent destruction.61 In Roman Zakharov v. Russia, the ECtHR held 
that the contested measure was in breach of the right of privacy because, inter alia, it 
was not sufficiently clear on the storage and destruction of the data collected.62  

FRA Opinion 8 

Article 7 of the proposal envisages that data preserved following removal orders may 
later be accessed for investigatory or prosecutorial purposes. Nonetheless, it does not 
require  that  such  access  depend  upon  prior  review  by  a  court  or  independent 
administrative body. The proposal also does not clearly stipulate the requirement to 
erase any data preserved following their preservation period. According to the CJEU 
and ECtHR jurisprudence, sufficiently clear rules are required to safeguard the rights to 
personal data protection and private life under Articles 7 and 8 of the Charter.  

The EU legislator should accompany the requirement for hosting service providers 
to preserve content that has been removed or disabled as a result of a removal 
order with sufficiently specific safeguards. For this reason, the EU legislator should 
consider: 

56   ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015, para. 260; CJEU, Digital 
Rights Ireland and Seitlinger and others [GC], Joined cases C-293/12 and C-594/12, 8 April 2014, 
paras. 58, 65; CJEU, Tele2 Sverige AB v. Post- och telestyrelsen and Secretary of State for the Home 
Department v. Tom Watson and Others [GC], Joined cases C-203/15 and C-698/15, 21 December 
2016, paras. 111, 119. 

57   CJEU, Tele2 Sverige AB v. Post- och telestyrelsen and Secretary of State for the Home Department v. 
Tom Watson and Others [GC], Joined cases C-203/15 and C-698/15, 21 December 2016, paras. 76-
81. 

58   Ibid, para. 120. 
59   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, OJ L 105/54, 13 April 2006, pp 54-63. 

60   CJEU, Digital Rights Ireland and Seitlinger and others [GC], Joined cases C-293/12 and C-594/12, 8 

April 2014, para. 62 and the operative part. 

61   ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015, paras. 231, 250, 253.  
62   Ibid., para. 302. 

                                                 
  stating in Recital (23) that “Member States should lay down clear and precise 
rules indicating in what circumstances and under what conditions competent 
national authorities can access the preserved content and any related data. 
Access to such content and data must be subject to a prior review by a court 
or  independent  administrative  body,  except  in  cases  of  validly  established 
urgency.” 

  adding a sentence at the end of Article 7 (1) stating that ”Except in cases of 
validly established urgency, access to terrorist content and related data for 
any  of  the  purposes  under  point  (b)  shall  be  authorised  only  after  a  prior 
review by a court or other independent administrative authority according to 
national legislation.” 

  adding  a  new  second  sentence  in  Article  7  (2)  stating  that  “Related  data 
preserved shall be erased after this period.” The same requirement could be 
reflected in Recital (22). 

 
 
3  Adjusting  the  referrals'  mechanism  to  avert  unlawful 

interferences with fundamental rights 

Article 5 of the proposal grants competent authorities of Member States or relevant 
EU  bodies  the  possibility  to  refer  content  to  hosting  service  providers  for  their 
expeditious “voluntary consideration”. In response, the hosting service provider shall 
quickly (“as a matter of priority”) assess the content identified by the referral against 
its  own  terms  of  service  and  decide  whether  such  content  should  be  removed  or 
disabled. Hosting service providers shall provide feedback to the relevant authority, of 
the outcome and timing of any action taken as a result of the referral. This would bring 
the  existing  referral-based  cooperation  of  Europol  and  Member  States’  law 
enforcement agencies with internet companies, designed to deal with online content 
that may contribute to radicalisation and extremism, under the ambit of the proposed 
Regulation.  Although  the  consideration  of  referrals  by  hosting  service  providers  is 
described in Article 5 (2) as “voluntary”, failure to do so exposes them to penalties 
pursuant to Article 18 of the proposal. 

The Chapter analyses the impact of the aforementioned provision on the freedom of 
expression and information under Article 11 of the Charter, due to the actual removal 
of  content  considered  to  be  terrorist. It also  looks at  the impact  on  the freedom  to 
conduct a business under Article 16 of the Charter, due to the requirement upon the 
hosting service providers to assess any content referred to them by the authorities 
against their terms of service, and take the appropriate action. 

3.1 

Strengthening Member States’ obligation to protect fundamental 
rights online 

According to the proposed Article 5 (4), the referral mechanism should be applied to 
content “considered terrorist content” by the competent authority. The Explanatory 
Memorandum confirms that the definition of ‘terrorist content’ in Article 2 (5) of the 
proposal  evenly  applies  to  removal  orders,  referrals  and  proactive  measures. 
According to the proposed Article 4 on removal orders, in cases of any content falling 
under the ambit of the definition of ‘terrorist content’, the competent authorities would 
have at their disposal the mechanism of removal orders which requires the mandatory 
removal  of  or  disabling  of  access  to  terrorist  content.  Relevant  recitals  and  the 
Explanatory Memorandum do not provide an explanation as to the difference between 
the content justifying the competent national authority’s use of a removal order, and 
other content, which is also considered terrorist but would require resorting to the use 
of a referral. 

This  opens  a  question  of  the  criteria  according  to  which  the  relevant  competent 
national authority should decide on whether to order a removal or opt to delegate the 
responsibility to the hosting service provider. It also poses the question why a hosting 
service provider should be better placed to assess and possibly remove content which, 
presumably,  has  not  warranted  the  issuing  of  a  removal  order  by  the  competent 
authority. While it is entirely possible that online content can be considered illegal on 
other  grounds  (e.g.  child  pornography),  removal  of  such  content  falls  outside  the 
subject matter of the current proposal and should not be pursued by measures aimed 
at combating terrorism. This lack of clarity could lead to the risk of improper use of the 
instrument of referrals, particularly in cases where the procedure at the national level 
for issuing them may be less stringent than that for issuing removal orders. 

For these reasons, the introduction of referrals in the proposed manner into EU law, 
could in fact undermine rather than strengthen the legitimacy and effectiveness of the 
existing,  functioning  cooperation  of  Europol  and  Member  States’  law  enforcement 
agencies with internet companies. 

The  concept  of  referrals  also  leads  to  the  broader  questions  of  transparency, 
effectiveness  and  accountability  of  the  proposed  measures.  In  the  absence  of  any 
additional  explicit  safeguards,  it  is  not  clear  what  the  accountability  of  public 
authorities would be in situations where they would initiate a removal of legitimate 
content via a referral. In this context, the Member States’ positive obligation to prevent 
non-justifiable limitations of fundamental rights imposed by private entities needs to 
be underlined, especially if Member States themselves encourage such conduct. In this 
regard, there must be a clear distinction between Member States’ duty to protect and 
hosting service providers’ responsibility to respect fundamental rights.63 According to 
the  relevant  guidelines  of  the  Council  of  Europe,  public  authorities  shall  avoid  any 
activity that exerts pressure on internet intermediaries through non-legal means.64 The 
lack  of  legal  clarity  would  be  further  compounded  by  the  fact  that  hosting  service 
providers are asked to assess the referred content solely against their own community 
standards. Terms of service or community standards often lack sufficient clarity and 
do  not  meet  the  requirement  of  ‘legality’  under  international  human  rights  law.65 
Furthermore, they do not reference human rights and related responsibilities.66 In this 
context,  the  obligation  under  Article  10  of  the  proposal  to  establish  complaint 
mechanisms for content providers whose content was removed or disabled as a result 
of  a  referral,  cannot  be considered  a  sufficient  safeguard  for  potential  fundamental 
rights infringements, as it does not – on its own – meet the requirements of an effective 
remedy required under Article 47 of the Charter.67 Nor can it absolve the competent 
authorities of their responsibility. 

Furthermore, receiving a referral from a competent authority could be understood as 
establishing  actual  knowledge  about  the  presence  of  illegal  content  hosted  by  the 
online  platform  within  the  meaning  of  Article  14  of  Directive  2000/31/EC  (E-
Commerce Directive),68 hence leading to the hosting service providers liability. The risk 
of  losing  the  protection  under  the  E-Commerce  Directive  may  lead  hosting  service 
providers to take steps to avoid the danger of liability and the imposition of high fines, 
including under Article 18 of the proposed Regulation for not  meeting their specific 
obligations under the referral mechanism, creating an incentive for the over-removal 
of content, including legitimate content. This would amount to a “chilling effect” and 

63   European Commission, ICT Sector Guide on Implementing the UN Guiding Principles on Business and 

Human Rights, p. 5. 

64   Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and 
responsibilities of internet intermediaries, Guidelines for States on actions to be taken vis-à-vis 
internet intermediaries with due regard to their roles and responsibilities, para. 1.1.1. 

65   Letter of the Special Rapporteur on the promotion and protection of human rights and fundamental 
freedoms while countering terrorism concerning Facebook’s overly broad definition of terrorism, OL 
OTH 46/2018, 24 July 2018. 

66   United Nations (2018), Mandates of the Special Rapporteur on the promotion and protection of the 
right to freedom of opinion and expression; the Special Rapporteur on the right to privacy and the 
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms 
while countering terrorism, OL OTH 71/2018, p. 7-8. 

67   FRA (2017), Improving access to remedy in the area of business and human rights at the EU level, 

10 April 2017. 

68   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 July 2000, pp. 1-16. 

                                                 
increase  the  likelihood  of  unjustified  interferences  with  the  right  to  freedom  of 
expression and information, as protected by Article 11 of the Charter. 

FRA Opinion 9 

The proposal does not sufficiently justify the necessity of introducing the mechanism 
of referrals under Article 5 through which competent authorities could instruct hosting 
service  providers  to  assess  specific  content  against  their  terms  of  service  and 
community standards, and potentially remove it. If they are introduced alongside other 
measures  in  the  proposal,  particularly  mandatory  removal  orders,  without  clearly 
distinguishing the circumstances in which they should be used,  it carries the risk of 
expanding  the  scope  of  what  is  understood  as  terrorist  content,  blurring  the 
responsibility  for  assessing  the  online  content  and  undermining  the  legal  certainty 
regarding liability of hosting service providers. These implications, together with the 
proposed  system  of  penalties,  could  lead  to  a  chilling  effect  on  the  freedom  of 
expression and information protected under Article 11 of the Charter. 

The  EU  legislator  should  introduce  clear  rules  to  distinguish  between  content  that 
would  justify  issuing  a  removal  order,  and  other  terrorist  content  which  would 
require resorting to a referral. 

Furthermore, the EU legislator should consider omitting the reference to Article 5 and 
referrals in Article 18 (1) (c) requiring Member States to introduce penalties upon 
hosting service providers. 

Finally,  the  EU  legislator  should  consider  including  a  reference  to  the  positive 
obligation  of  the  Member  States  to  secure  the  effective  exercise  of  fundamental 
rights and prevent fundamental rights violations in a relevant recital. 

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

Article  6  of  the  proposed  Regulation  allows  hosting  service  providers  to  adopt 
proactive measures to fight against the dissemination of terrorist content, including by 
automated means. According to the proposed Article 6 (1), they shall take the initiative 
to adopt such measures, in which case the proposal requires that the measures are 
proportionate and respect fundamental rights. Pursuant to Article 6 (2) of the proposal, 
hosting service providers are also required to report on proactive measures taken in 
response to a removal order. This is to prevent the re-upload of the removed content 
and, more generally, to detect, identify and expeditiously remove or disable access to 
terrorist content. Where the competent authority considers these to be insufficient, it 
may request or impose additional proactive measures. Proposed Article 6 (5) provides 
that a hosting service provider may request the competent authority to review and 
revoke  its  request  for  proactive  measures  or  its  decision  imposing  these.  The  draft 
Regulation  does  not,  however,  provide  clarity  whether  the  affected  hosting  service 
providers would be able to request an external independent and impartial review of 
the competent authority’s decision.  

This  Chapter  covers  the  issue  of  responsibility  for  possible  fundamental  rights 
violations  by  actions  of  private  actors,  particularly  as  regards  the  freedom  of 
expression and information under Article 11 of the Charter. It also touches on the rights 
to private life (Article 7) and the protection of personal data (Article 8). In addition, it 
looks at the hosting service providers’ right to an effective remedy (Article 47 of the 
Charter) given the implications of the obligation to apply proactive measures on the 
freedom of expression as well as the freedom to conduct a business under Article 16 
of the Charter. 

4.1  Safeguarding due diligence  

Article  3  of  the  proposal  requires  that  when  taking  actions  to  prevent  the 
dissemination  of  terrorist  content,  hosting  service  providers  shall  act  in  a  diligent, 
proportionate and non-discriminatory manner and with due regard to the fundamental 
rights  of  users.  It  underlines  the  “fundamental  importance  of  the  freedom  of 
expression and information in an open and democratic society.” Proposed Recital (17) 
adds  that  hosting  service  providers  should  act  with  due  diligence  to  avoid  any 
unintended  and  erroneous  decision  leading  to  the  removal  of  content  that  is  not 
terrorist content. This means that unlike in case of removal orders under Article 4, the 
hosting service providers themselves should assess the content and then ensure that 
it is removed from their platforms. At the same time, they also bear the responsibility 
for  interferences  with,  and  possible  violations  of,  fundamental  rights  when  they 
remove non-terrorist content. 

Yet, it is for the  state and not a private party to secure the rights and freedoms of 
everyone  within  its  jurisdiction.  In  order  to  secure  the  effective  exercise  of  the 
freedom  of  expression  and  information  under  Article  11  of  the  Charter  requires 
Member States to adopt positive measures to protect the human rights of individuals 
online  and  offline,  striking  a  fair  balance  between  the  freedom  of  expression  and 

information, and the private entities’ freedom to conduct a business, as guaranteed by 
Article 16 of the Charter.69  

EU Member States’ positive obligation would require that the public authorities must 
ensure  that  fundamental  rights  impact  assessments  are  being  conducted  by  host 
service providers  on  regular  basis.  They  should equally  provide guidelines  to online 
platforms on how to bring their terms of service or community standards in line with 
fundamental  rights  principles.  In  this  context,  a  reference  can  also  be  made  to  the 
Council of Europe Guide to Human Rights for Internet Users which stipulates that states 
have an obligation to ensure that any general terms and conditions of private sector 
entities that are not in accordance with international human rights standards, must be 
held null and void in domestic legal systems of Council of Europe Member States.70 

The monitoring requirement proposed in Article 6 can in practice be performed only 
by automated detection tools and filtering systems. Indeed, under proposed Article 6 
(2),  proactive  measures  employed  by  hosting  service  providers  may  include 
automated tools. Recital (18) of the proposal specifically refers to the use of reliable 
technical  tools  to  identify  new  terrorist  content.  However,  the  character  of  online 
communication is deeply context-dependent and intersubjective. In this context, it is 
remarkable that Article 9 (2) of the proposal only requires hosting service providers to 
implement  human  oversight  and  verifications  “where  appropriate”,  rather  than 
employing human methods by default and in all cases for assessing whether or not 
specific content should be removed. 

In order to be effective, such tools have to be applied to all user-generated content 
hosted by online platforms, likely already at the point of upload. This would result in 
general monitoring of content which would not be compatible with the online users’ 
right to freedom of expression pursuant to Article 11 of the Charter. It would also carry 
risks for the rights to private life and the protection of personal data of other persons 
(Articles 7 and 8 of the Charter), including those who are not users of the platforms 
but  whose  information  might  be  processed  as  part  of  the  screening  of  the  users’ 
content.71 
relevant 
recommendations of the Council of Europe in this field.72 

this  would  not  be  compatible  with 

In  addition, 

the 

Imposing such a general monitoring obligation is also prohibited by Article 15 of the E-
Commerce  Directive.  Recital  (19)  of  the  proposal  advocates  for  derogations  from 
Article  15  due  to  a  “particularly  grave  risk  imposed  by  dissemination  of  terrorist 
content  online.”  The  E-Commerce  Directive,  however,  does  not  allow  for  any 
exemptions  from  this  prohibition.  In  Sabam  v.  Netlog,  the  CJEU  concluded  that  a 
filtering  system,  which  targets  a  specific  type  of  content  while  indiscriminately 
monitoring  all  information  shared  by  platform  users  for  unlimited  period  of  time, 
amounts  to  such  a  prohibited  general  monitoring  obligation.73  Although  the  case 
concerns copyright infringements, the applied filtering technique remains the same, 
regardless of the different types of targeted content. 

69   ECtHR, VgT Verein Gegen Tierfabriken v. Switzerland, No. 24699/94, 28 June 2001, para. 45. See 

also ECtHR, Delfi AS v. Estonia [GC], No. 64569/09 2015, 16 June 2015, para. 138. 

70   Council of Europe (2014), Guide to human rights for Internet users, contained in an Appendix to 
Recommendation of the Council of Europe’s Council of Ministers CM/Rec(2014)6, 16 April 2014, 
para. 5.5.  

71   ECtHR, Delfi AS v. Estonia, No. 64569/09, 16 June 2015, para. 138.  
72   See for instance Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States 
on the roles and responsibilities of internet intermediaries, Guidelines for States on actions to be 
taken vis-à-vis internet intermediaries with due regard to their roles and responsibilities, para. 1.3.5. 

73   CJEU, SABAM v. Netlog NV, C-360/10, 16 February 2012. 

                                                 
The requirement of Article 6 (2) (a) to prevent the re-upload of previously removed 
content is also open to interpretation, as the proposal does not clarify to what extent 
this limits the filtering to identical copies only, and which technical solutions will need 
to  be  involved  for  different  types  of  content.  Preventing  the  re-appearance  of 
previously  identified  terrorist  content  will  require  comparing  all  newly  uploaded 
content to a database gathering  content already recognised as terrorist. Due to the 
quantity of user-generated content, such systems will realistically be run by algorithms 
which will require access to high quality data on which they can be trained. 

The  Impact  Assessment  accompanying  the  proposal  acknowledges  a  range  of 
fundamental rights concerns related to the reliance on proactive measures to prevent 
the dissemination of online terrorist content. This includes the risk of possible biases, 
inherent errors and discrimination that can lead to erroneous decisions in algorithmic 
decision-making.74  It  states  that  the  impact  on  the  freedom  of  expression  and 
information would in such circumstances “depend largely on the accuracy of such tools 
and how well calibrated they are in terms of avoiding false positives.”75 In this regard, 
it recognises the immaturity of language processing systems for identifying illegal hate 
speech and other type of harmful speech, as well as the frequent misidentification of 
visual  content.76  The  Agency  has  elaborated  on these  issues  in  its  May  2018  Focus 
Paper. According to the findings, the use of algorithms in decision-making can bring 
welcome benefits, such as consistency and objectivity. However, it also entails serious 
risks, as it can result in, or exacerbate, discrimination.77 

Finally,  the  formulation  of  Article  6  (2)  implies  the  obligation  of  a  hosting  service 
provider to adopt proactive measures in all cases where it has been an addressee of a 
removal order. This does not seem to reflect the different level of exposure to terrorist 
content that such providers might be facing, and may lead to disproportionate effect 
on  the  freedom  to  conduct  a  business  as  well  as  to  a  proliferation  of  proactive 
measures  impacting  on  the  freedom  of  expression  and  information.  Therefore,  the 
proportionality of these measures would be enhanced if they were narrowly targeted 
to  those  hosting  service  providers  that  have  been  used,  demonstrably  and  to  a 
significant extent, for dissemination of illegal terrorist content, i.e. been subject to a 
considerable number of justified removal orders.78 

FRA Opinion 10 

By introducing in Article 6 a broad obligation upon hosting service providers to apply 
proactive measures to assess and potentially remove content and at the same time 
making them fully responsible for potential interferences with fundamental rights, the 
proposal raises issues of compatibility with the positive obligations of the state under 
the Charter. Obligations under the proposed Article 6 may lead to general monitoring 
of  content,  which  would  not  be  compatible  with  online  users’  right  to  freedom  of 
expression and information pursuant to Article 11 of the Charter. They also carry risks 
for the rights to private life and protection of personal data of other persons  under 

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

Accompanying the Document Proposal for a regulation of the European parliament and of the 
Council on preventing the dissemination of terrorist content online, SWD(2018) 408 final, Brussels, 
12 September 2018, p. 15.  

75   Ibid., p. 105. 
76   Ibid., pp. 13, 40-41. 
77   FRA (2018), Focus Paper #BigData: Discrimination in data-supported decision making, May 2018.  
78   Blanco, L., Jeppesen, J.-H., Terrorist Content Regulation: MEPs Should Support IMCO and CULT 

Committees Proposals, Center for Democracy and Technology, 25 January 2019. 

                                                 
Articles 7 and 8 of the Charter. The impact of enhanced use of automated means and 
artificial intelligence software, encouraged by the proposal, would significantly impact 
on  the  rights  of  freedom  of  expression  and  information  and  non-discriminatory 
treatment of online users, also due to the limited reliability of such tools. 

The  EU  legislator  should  consider  deleting  Article  6  (1)  obliging  hosting  service 
providers to apply proactive measures. A relevant recital should instead refer to the 
positive  obligation  of  the  Member  States  to  secure  the  effective  exercise  of 
fundamental  rights  and  prevent  fundamental  rights  violations,  including  by 
providing  necessary  guidance  to  hosting  services  providers  to  ensure  that  their 
content restricting polices set out in the general terms and conditions pay due regard 
to  the  relevant  human  rights  standards;  and  underline  that  the  effectiveness  of 
software  used  to  detect  terrorist  content  should  be  adequately  tested,  especially 
from a fundamental rights perspective. 

The EU legislator should clarify in Article 6 (2) that the provision aims at preventing 
the re-appearing of content identical to that previously identified as terrorist, and 
removed on the basis of a removal order. Furthermore, it should ensure by amending 
Recital (19) that the proposal does not permit any conflict with EU law, namely by 
allowing for a derogation from the prohibition of general monitoring obligation, as 
enshrined in Article 15 of the E-Commerce Directive. 

At the same time, the EU legislator should also clarify in Recital (18) that Article 6 (2) 
should  not  be  interpreted  as  requiring  any  hosting  service  provider  to  whom  a 
removal order  had  been  addressed to  introduce  proactive  measures, and  that  the 
competent  authority  referred  to  in  Article  17  (1)  (c)  should  take  into  account  the 
level of exposure of the host service providers to terrorist content.  

4.2 

Ensuring  the  right  to  an  effective  remedy  for  hosting  service 
providers  against  decisions 
imposing  additional  proactive 
measures 

According to Article 47 of the Charter, it is for EU Member States to establish a system 
of legal remedies and procedures that ensure respect for rights under EU law.79 The 
right of access to a court is not absolute and can be limited, for example by imposing 
reasonable time limits that promote the proper administration of justice.80 Access to a 
court  can  well depend  on  prior  exhaustion  of available  remedies before competent 
administrative  authorities.81  However, 
should  not 
disproportionately affect the right to bring an action before a court. It should not lead 
to substantial delay, nor involve excessive costs, and should include the suspension of 
limitation  periods  (prescription).82  Legislation  not  providing  any  possibility  for  an 
individual to pursue legal remedies does not respect the essence of the fundamental 
right to effective judicial protection, as enshrined in Article 47 of the Charter.83  

requirement 

such  a 

Hosting service providers are obliged to take proactive measures, following a request 
or a decision by the competent authority. Recital (8) of the proposed Regulation refers 

79   CJEU, Unibet (London) Ltd and Unibet (International) Ltd v. Justitiekanslern, C-432/05, 

13 March 2007, paras. 37-42. 

80   FRA (2016), Handbook on European law relating to access to justice, Luxembourg, Publications 

Office, p. 28. 

81   CJEU, Peter Puškár v. Finančné riaditeľstvo Slovenskej republiky, Kriminálny úrad finančnej správy, 

Case C‑73/16, 27 September 2017, para. 70. 

82   Ibid., para. 71. 
83   CJEU, Maximillian Schrems v. Data Protection Commissioner, C-362/14, 6 October 2015, para. 95. 

                                                 
to the right of each natural or legal person “to an effective judicial remedy before the 
competent  national  court  against  any  of  the  measures  taken  pursuant  to  this 
Regulation”. Nevertheless, it only specifically mentions the situation of hosting service 
providers and content providers to effectively contest the removal orders before the 
court of the Member State whose authorities issued the removal order. Article 6 which 
regulates  the  mechanism  of  proactive  measures,  refers  to  a  review  by  the  same 
competent authority. In other words, the proposal does not require involvement of a 
court  in  review  of  decisions  taken  pursuant  to  Article  6  (4),  nor  does  it  take  into 
account  the  complexities  of  cross-border  scenarios.  This  is  despite  the  fact  that 
proactive  measures,  especially  those  which  are  explicitly  imposed  by  a  decision, 
interfere with the rights of both the hosting service provider and content providers. In 
addition, imposing proactive measures involves costs and other organisational burdens 
for  hosting  service  providers,  hereby  interfering  with  their  freedom  to  conduct  a 
business, as guaranteed under Article 16 of the Charter.  

FRA Opinion 11 

The  proposal  establishes  in  Article  6 (4)  that  the  competent  authority  can  issue  a 
decision  requiring  hosting  service  providers  to  take  specific  additional  proactive 
measures on a mandatory basis. At the same time, it only provides for a review by the 
same competent authority, without requiring that such review should be conducted by 
a  court,  contrary  to  the  minimum  requirements  for  an  effective  remedy  under 
Article 47 of the Charter.  

The EU legislator should ensure the right to an effective remedy for hosting service 
providers  against  the  mandatory  imposition  of  additional  proactive  measures  by 
amending Article 6 (5) to state that decisions taken pursuant to Article 6 (4) shall be 
subject to review by a court. 

T
K
-
0
1
-
1
9
-
1
6
4
-
E
N
-
N

ISBN: 978-92-9474-244-5 
doi: 10.2811/818523

FRA – European Union Agency for Fundamental Rights 

Schwarzenbergplatz 11 ▀ 1040 Vienna ▀ Austria ▀ 
Tel +43 158030-0 ▀ Fax +43 158030-699 
fra.europa.eu ▀ info@fra.europa.eu ▀ facebook.com/fundamentalrights 
▀ linkedin.com/company/eu-fundamental-rights-agency ▀
twitter.com/EURightsAgency