Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee, the Justice Committee, the Digital, Culture, Media and Sport Committee and the Joint Committee on Human Rights
Proposal for a Regulation on preventing the dissemination of terrorist content online
Article 114 TFEU, ordinary legislative procedure, QMV
(40069), 12129/18 + ADDs 1–3, COM(18) 640
6.1The seeks to fulfil the commitment made by the European Commission President, Jean-Claude Juncker, in his September 2018 to put forward “new rules to get terrorist content off the web within one hour—the critical window in which the greatest damage is done”. The proposal would require online platforms to take proactive measures to prevent the dissemination of terrorist content; empower national authorities to issue a legally binding order for the removal of terrorist content from the web within an hour; introduce penalties for platforms which fail to act promptly; and strengthen cooperation amongst Member States and with Europol. The new power to issue a removal order would operate alongside existing voluntary referral mechanisms, but with a clear obligation on hosting service providers to put in place the necessary operational and technical measures to ensure that referrals are dealt with expeditiously. The proposed Regulation also includes a range of safeguards in recognition of “the fundamental importance of freedom of expression and information in an open and democratic society”. Our agreed on 24 October 2018 provides a detailed overview of the proposal.
6.2In his informative Explanatory Memorandum (see and ), the then Minister for Security and Economic Crime (Rt Hon. Ben Wallace MP) welcomed the prospect of EU regulatory action to tackle online terrorist content. Whilst acknowledging the value of voluntary cooperation with service providers, he considered that tech companies had “not gone far enough or fast enough” and that the approach taken by the Commission in seeking to balance public security and fundamental rights established “a helpful precedent” and would “lay the groundwork and support our own intention to legislate on illegal online content”. He shared the Commission’s view that a fragmented framework of national rules would be burdensome for companies operating within the EU’s digital single market and that Article 114 TFEU on the internal market, rather than EU Treaty provisions on justice and home affairs matters, was the appropriate legal base for EU action.
6.3Noting the Government’s support for regulatory action at EU level, we granted a scrutiny waiver ahead of the December 2018 Justice and Home Affairs Council to enable the Government to support the put forward by the Austrian Presidency. Reporting back to us on the outcome of the Council, the Minister said there was a general recognition of the urgency of the threat posed by online terrorist content and a shared determination to strengthen the EU’s “toolbox” of counter-measures, but some Member States had nonetheless been unable to support the text. Finland and Denmark cited a conflict with their own national constitutions, the Netherlands questioned whether the general approach struck “the right balance between removal of content and fundamental rights”, and Slovakia, Slovenia, the Czech Republic and Poland expressed concern that an agreement was “premature” and called for further analysis at expert level. The Presidency had offered assurance that “various points of objection” could be addressed in trilogue negotiations with the European Parliament.
6.4We also acknowledged the urgency of the threat and the need to act quickly, but expressed concern that the Presidency had been unable to put forward a compromise text commanding the support of all Member States. In our we asked the Minister to write to us again once the European Parliament had agreed its negotiating position on the proposed Regulation with details of:
6.5We noted that the Council had proposed a new consultation procedure intended to ensure that the Member State in which a service provider hosting terrorist content is established has an opportunity to raise concerns if it considers that a removal order issued by another Member State would “impact [its] fundamental interests”. We asked the Minister how effective this consultation procedure was likely to be in practice, given that a hosting service provider would be under an obligation to act within one hour, leaving little time for the Member State of establishment to voice an objection or set out the grounds for believing that a removal order would be unjustified.
6.7The Minister considers that the revised text proposed by the European Parliament has “in certain parts, moved quite significantly from the versions put forward by the Commission and Council”. Some (though not all) of the changes would be difficult for the Government to support and raises “clear concerns”:
Of most concern is the lack of provision regarding proactive measures. I have been clear since my first correspondence, as has the Government, that in order to see meaningful action against the threat of terrorist content online, HSPs [hosting service providers] need to proactively prevent their platforms from being misused by terrorists and their supporters, through better content moderation and the use of automated technology to identify and remove content. Notice and takedown regimes will not sufficiently address this problem.
6.8The Minister highlights the publication of the Government’s in April 2019 which proposes a domestic legal framework to hold companies to account for harmful user-generated content hosted on their platforms. He observes:
Whilst the Government has committed to leaving the European Union, we want to ensure alignment of UK and EU law, particularly on an area which is inherently cross-border in nature.
6.9The proposed Regulation would apply 12 months after entering into force, meaning that the UK would be bound by it under the post-exit transition period envisaged in the draft EU/UK Withdrawal Agreement. Moreover, as the proposal would establish uniform rules to support the functioning of the internal market, it would be difficult for individual Member States to apply stricter rules. The Minister notes:
Given a key tenet of our Online Harms White Paper will be for companies to proactively moderate their platforms for terrorist content, in order to fulfil a duty of care to their users, we are concerned the European Parliament has suggested something substantially weaker, which our domestic legislation would have to align to, while we are still a member of the EU.
6.10The Minister expresses concern that the changes proposed by the European Parliament would impose unnecessary restrictions and burdens on the UK national authority empowered to issue removal orders, citing new transparency obligations and “a complicated and watered-down removal order process”. He considers that the European Parliament’s insistence on a single judicial or independent administrative body in each Member State with a power to issue removal orders “is likely to be problematic in the short term”—the case for a single independent regulator is one of the issues the Government will be exploring in its consultation on the Online Harms White Paper.
6.11The Government is keen to ensure that changes in terminology (such as the use of the term ‘public’ in defining the services covered by the proposed Regulation or the exclusion of cloud infrastructure services) do not inadvertently narrow the amount of user-generated content brought within the scope of EU regulation and “will look to align our position on this issue across both pieces of legislation” (domestic and EU). The Government would also “prefer not to place obligations on HSPs to erase preserved data” after six months.
6.12The Minister is content to support changes proposed by the European Parliament to strengthen ‘user redress’ and the protection of fundamental rights, adding:
These proposed changes are likely to allay some of the concerns previously raised by some Member States around striking the right balance between content removal and fundamental rights.
6.13The Minister recognises that the speed with which a removal order would take effect leaves little time for consultation with other Member States but considers that “the efficacy of notifying another Member State of a removal order lies in the transparency it provides, adding a further ‘check’ on the actions of a Member State”.
6.14The Minister anticipates that it will be “challenging” for the Council and European Parliament to reach agreement on a compromise text and says the Government will seek to retain the level of ambition in the Commission’s original proposal. He concludes nonetheless that:
[…] the desire to legislate on this issue at EU level remains, and indeed has arguably been strengthened since the tragic events of the Christchurch attack. As such, we expect all parties will strive to reach an agreeable compromise. My officials have already engaged with the upcoming Finnish Presidency who have set aside time to hold subsequent meetings to progress this file in the autumn. Until trilogues begin, Government officials will look to engage Member State counterparts and newly elected MEPs to influence their position on this file ahead of negotiations. This links in with engagement we are doing across the EU on our Online Harms White Paper, putting the case forward for proportionate and effective regulation, which will meaningfully address the harms we see online.
6.15The political will to agree an EU framework to prevent the dissemination of terrorist content online appears undiminished, yet the significant differences in the approach taken by the Council and the Commission on the one hand, and the European Parliament on the other, to the intensity of regulation in this area, and the difficult balance that has to be struck between public safety and freedom of expression, suggest that there is little prospect of securing a compromise agreement before the UK leaves the EU on 31 October 2019. It therefore seems unlikely that the UK will have a vote on the legislation finally adopted by the European Union.
6.16This is important for two reasons. First, should negotiations on a compromise text extend beyond 31 October 2019, the UK’s ability to shape its content will be diminished. The loss of voting powers also means that the UK will not be able to play a decisive role in pushing through a text which it can support or in blocking one that it dislikes.
6.17Second, in areas such as this which are “inherently cross-border in nature”, the Minister recognises that regulation will be more effective if there is a close alignment between the UK’s domestic law and the EU’s legal framework, even after the UK has left the EU. The UK’s ability to inform and influence legislative and policy developments within the EU will continue to matter. There will be an important role for Parliament in ensuring that the way in which the Government engages with EU institutions and Member States post-Brexit is transparent and that the influence and reach of EU law in establishing new domestic regulatory frameworks is properly understood.
6.18Given the important synergies between the proposed Regulation and the Government’s domestic agenda for legislating to tackle a broader range of online harms, we ask the Minister to provide regular progress reports once trilogue negotiations are underway. Meanwhile, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee, the Justice Committee, the Digital, Culture, Media and Sport Committee and the Joint Committee on Human Rights.
Fiftieth Report HC 301–xlix (2017–19),(9 January 2019), Forty-sixth Report HC 301–xlv (2017–19), (28 November 2018) and Forty-first Report HC 301–xl (2017–19), (24 October 2018).
34 For an overview of the Commission’s proposal, see the European Commission’s fact sheet published on 12 September 2018, .
35 Article 5.
36 See Articles 3(1) and 6(4).
37 Article 4(a) of the Council General Approach agreed in December 2018.
38 See the amendments to Articles 1 and 2 of the Commission’s proposal.
39 See the new text in Article 2 and the amendment to Article 17(1) of the Commission’s proposal.
40 See the amendments to Article 4 of the Commission’s proposal.
41 See the amendments to Article 4 of the Commission’s proposal.
42 The EP amendments would delete Article 5 of the Commission’s proposal.
43 See the amendments to Article 6 of the Commission’s proposal.
44 See the amendments to Article 7 of the Commission’s proposal.
45 See the new text in Article 8a.
46 See CP 57.
Published: 9 September 2019