COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Regulation of the European Parliament and the Council to address the dissemination of terrorist content online
Date: 2021-03-17
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Internet, access to information, cross-border cooperation, digital single market, dissemination of information, fight against crime, freedom of expression, information, provision of services, terrorism

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   EUROPEAN COMMISSION  Brussels, 17.3.2021  COM(2021) 123 final 2018/0331 (COD)  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the position of the Council on the adoption of a Regulation of the European Parliament and the Council to address the dissemination of terrorist content online  
 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT 

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

concerning the 

position of the Council on the adoption of a Regulation of the European 

Parliament and the Council to address the dissemination of terrorist content online 

1. 

BACKGROUND  

Date of transmission of the proposal to the European Parliament and 
to the Council (document COM/2018/640 final – 2018/0331(COD) 

12 September 2018 

Date of Council agreement on a negotiation mandate 

6 December 2018 

Date of the position of the European Parliament, first reading  

17 April 2019 

Date of trilogue 1 

Date of trilogue 2 

Date of trilogue 3 

Date of trilogue 4 

Dates of trilogue 5  

Date of trilogue 6 (final) 

Date  of  political  agreement  in  the  Committee  of  Permanent 
Representatives  

17 October 2019 

20 November 2019 

12 December 2019 

24 September 2020  

29 October 2020 

10 Deceember 2020 

16 December 2020  

Date  of  the  LIBE  Committee  of  the  European  Parliament  voted  to 
endorse the compromise agreement  

11 January 2021 

Date of adoption of the Council first reading position 

16 March 2021  

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

Terrorist  attacks  on  EU  soil  have  demonstrated  how  terrorists  misuse  the  internet  to  groom 
and recruit supporters, to prepare and facilitate terrorist activity, to  glorify in their atrocities 
and urge others to follow suit and instil fear in the general public. 

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

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

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

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

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

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

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

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Scope:  Clarification  that  material  disseminated  for  educational,  journalistic,  artistic 
or research purposes or for the purposes of preventing or countering terrorism is not 
to  be  considered  terrorist  content,  and  that  an  assessment  is  to  determine  the  true 
purpose of dissemination. 
Clarification that the Regulation is without prejudice to the e-Commerce Directive1 
and the Audiovisual Media Services Directive2, as well as that for audio-visual media 
services  the  latter  directive  prevails  in  cases  of  conflict.  A  recital  clarifies  that  this 
leaves  the  obligations  for  video-sharing  platform  providers  under  the  Regulation 
unaffected. 

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

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 (OJ L 
178, 17.7.2000, p. 1–16). 
Directive  (EU)  2018/1808  of  the  European  Parliament  and  of  the  Council  of  14  November  2018 
amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation 
or administrative action in Member States concerning the provision of audiovisual media services (OJ L 
303, 28.11.2018, p. 69–92). 

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Definitions:  The  definition  of  ‘terrorist  content’  excludes  material  that  “promotes” 
the  activities  of  terrorist  groups  and  is  aligned  more  closely  with  the  relevant 
offences in the Directive on combating terrorism3. 

Removal orders: The deadline of maximum one hour for hosting service providers to 
remove/disable acces  to  terrorist content is  maintained, but  the competent authority 
needs to inform the hosting service provider 12 hours in advance of the first removal 
order,  except  in  cases  of  urgency.  In  addition,  in  cases  of  objectively  justifiable 
technical  or  operational  reasons  making  it  impossible  to  comply  with  the  removal 
order, the deadline will be suspended. 

Right  of  scrutiny/  procedure  for  cross  border  removal  orders:  While  all  Member 
States  are  entitled  to  issue  removal  orders  to  any  hosting  service  provider, 
irrespective  of  its  place  of  establishment,  a  new  article  on  procedures  for  cross-
border  removal  orders  (Article  4)  enables  the  competent  authority  of  the  ‘host’ 
Member  State  (that  is,  the  Member  State  where  the  hosting  service  provider  is 
established or has its legal representative) to scrutinise a removal order to determine 
whether or not it contains manifest or serious breaches of fundamental rights or the 
Regulation. Hosting service providers and content providers have the right to request 
a  review  of  the  removal  order  by  that  competent  authority,  in  which  case  that 
authority  is  obliged  to  carry  out  the  scrutiny  and  set  out  its  findings  in  a  decision. 
Where  the  scrutiny  leads  to  findings  of  manifest  or  serious  breaches,  the  removal 
order ceases to have legal effect and the hosting service provider is no longer under 
an obligation to remove the material and should in principle reinstate it. 

Specific  measures:  The  content  of  Articles  3,  6  and  9  of  the  proposal  has  been 
adjusted  and  merged  into  one  article  setting  out  the  obligations  of  hosting  service 
providers to  put  in  place specific measures to  address  the dissemination of terrorist 
content.  These  obligations  apply  only  to  those  hosting  service  providers  that  the 
competent  authority  has  found  to  be  exposed  to  terrorist  content.  Although  the 
competent  authorities  can  require  hosting  service  providers  to  take  additional 
measures,  the  choice  of  the  specific  measures  to  address  terrorist  content  remains 
with the hosting service providers, which cannot be obliged to use automated tools. 

Referrals: The article on referrals (that is, a mechanism for the submission of notices 
alerting  hosting  service  providers  of  terrorist  content  for  the  providers’  voluntary 
consideration  against  their  terms  and  conditions)  contained  in  the  Commission 
proposal has been deleted. However, a recital clarifies that the instrument of referrals 
remain at the disposal of Member States and Europol. 

Competent  authorities:  Member  States  are  to  designate  competent  authorities  in 
accordance with the requirements of the Regulation, including making sure that those 
authorities do not  seek or receive instructions and that they act  in  an objective and 
non-discriminatory manner, ensuring full respect for fundamental rights. 

Penalties: The article on penalties includes the explicit possibility for Member States 
to  decide  whether  or  not  to  impose  penalties  in  individual  cases,  taking  account  of 
circumstances such as the nature and size of the hosting service provider concerned, 

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 L 88, 31.3.2017, p. 6–21). 

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the degree of its  fault for the breach  and the technical  and organisational measures 
that it may have taken to ensure compliance with the requirements of the Regulation. 

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Final provisions: the time period for the entry into application of the Regulation was 
extended  to  12  months  after  its  entry  into  force,  while  the  time  period  for  the 
evaluation of the Regulation was shortened to two years after entry into application. 

The  Commission  considers  that,  overall,  the  political  agreement  reached,  as  reflected  in  the 
Council  position,  preserves  the  principal  objectives  of  the  Commission  proposal  mentioned 
above.  In  particular,  the  agreed  text  constitutes  a  balanced  approach  ensuring  that  terrorist 
content  online  is  tackled  effectively,  that  a  comprehensive  set  of  safeguards  to  protect 
fundamental  rights  is  provided for  and that hosting services providers active on the internal 
market are subject to uniform and proportionate rules. 

4. 

CONCLUSION 

The Commission accepts the position taken by the Council. 

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