Documents considered by the Committee on 9 January 2019 Contents

5Preventing the dissemination of terrorist propaganda online

Committee’s assessment

Legally and politically important

Committee’s decision

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

Document details

Proposal for a Regulation on preventing the dissemination of terrorist content online

Legal base

Article 114 TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(40069), 12129/18 + ADDs 1–3, COM(18) 640

Summary and Committee’s conclusions

5.1The European Commission’s proposal for a Regulation seeks to fulfil the commitment made by its President, Jean-Claude Juncker, in his State of the Union speech in 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”.72 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.73 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”.74 Our Report agreed on 24 October 2018 provides a detailed overview of the proposal.

5.2In his informative Explanatory Memorandum (see part one and part two), the Minister for Security and Economic Crime (Mr 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 (notably, freedom of expression and freedom to conduct a business) 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, rather than EU Treaty provisions on justice and home affairs matters, was the appropriate legal base for EU action.

5.3The Commission is keen to secure the adoption of the proposed Regulation before the next European Parliament elections in May 2019. Negotiations within the Council have proceeded at a rapid pace. In his letter of 7 November 2018, the Minister provided further information on the Government’s approach to negotiations, the impact of the proposal on UK domestic law and its implications for freedom of expression, and consistency with other EU legislation applicable to online platforms. Our Report agreed on 28 November 2018 provides further details. The Minister informed us of the Presidency’s intention to seek a general approach at the Justice and Home Affairs Council on 6/7 December. Given the Government’s support for regulatory action at EU level to tackle online terrorist content, we considered that there would be some advantage in bringing the matter to the Council before the UK’s exit from the EU, thereby ensuring that the UK would be able to influence and vote on any compromise text. We granted a scrutiny waiver to enable the Government to express its support for the general approach but asked the Minister to:

5.4In his letter of 20 December 2018, the Minister confirms that a majority of Member States, including the UK, were able to support the general approach which the Austrian Presidency considered to be “a good and responsible compromise text”. Whilst 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, some Member States were nonetheless 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 at this stage was “premature” and called for further analysis at expert level. The Presidency offered assurance that “various points of objection” could be addressed in trilogue negotiations with the European Parliament (expected to begin early in 2019). The European Commission also urged Member States to use the EU Internet Forum as a platform “to iron out implementation issues”.

5.5The Minister considers that revisions made to the proposed Regulation during negotiations within the Council have gone some way to addressing Member States’ concerns. He highlights two changes sought by the Government:

5.6The Government also supports changes to Article 15(1) and recital (34) which now make clear that “for reasons of effective implementation, urgency and public policy, any Member State has jurisdiction to issue removal orders and referrals to any hosting service provider, irrespective of the Member State where it is established or where it has designated a legal representative”. The Minister considers that this change will ensure the Regulation is “as robust as possible”, giving all Member States the authority to issue a removal order directly to a hosting service provider. To address the concerns expressed by some Member States, the general approach includes a new consultation procedure requiring a Member State issuing a removal order to send in parallel a copy of the order to the Member State in which the hosting service provider is established or has its legal representative.76 The Government was willing to support the new text “as a means to unblock an impasse”.

5.7The Minister does not consider that it will be feasible to establish a central oversight mechanism at EU level to monitor removal orders being sent to hosting service providers, since “the obvious candidate for the role” would be the EU Internet Referral Unit based in Europol. The European Commission cannot mandate a justice and home affairs agency, such as Europol, to support or oversee the implementation of a single market measure. The EU Internet Referral Unit will nonetheless continue ongoing work to develop and scale up methods and tools to “facilitate better cooperation between Member States on referrals of online terrorist content”. The general approach encourages the use of Europol tools, such as the Internet Referral Management application, and provides for hosting service providers to transmit any evidence of terrorist offences to Europol in certain circumstances. As Europol’s current mandate “does not allow for transmission or channelling of removal orders themselves”, the Minister adds that the EU Internet Referral Unit has focussed on the (voluntary) referral mechanism. He continues:

Recognising the limitations of what can be asked of Europol, efforts have been made to ensure the removal order process outlined in the Regulation is as effective as possible. For example, Article 13(3) and recitals (27) and (30) have been amended to ensure that Member States coordinate before issuing removal orders—clarifying how duplication and interference with investigations should be avoided.

5.8Finally, the Minister anticipates that the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs will issue its report on the proposed Regulation early in 2019. The Government has already begun to engage with the Committee’s rapporteur, Daniel Dalton (a UK member of the European Conservatives and Reformists grouping—”ECR”), “to support his understanding of the threat and share our position on the Regulation”.

Our Conclusions

5.9We thank the Minister for his prompt update on the outcome of the December Justice and Home Affairs Council and on the main elements of the general approach agreed. The proposed Regulation must strike a delicate balance between the public interest in freedom of expression, on the one hand, and the need to act pre-emptively against online terrorist content which may threaten public safety and national security, on the other. We acknowledge the urgency of the threat and the need to act quickly. It is nonetheless disappointing that the Presidency was unable to put forward a compromise text capable of commanding the support of all Member States. The possibility that elements of the proposed Regulation may conflict with the national constitutions of some Member States, or raise censorship concerns, is no small matter. Even though the Government supports the general approach, we trust that it will seek to play a constructive role in addressing these wider concerns. We ask the Minister to write to us again once the European Parliament has agreed its negotiating position on the proposed Regulation with details of:

5.10We note that the new consultation procedure for removal orders set out in Article 4(a) of the general approach would require a copy of a removal order to be sent at the same time to the service provider hosting terrorist content and to the relevant authority of the Member State in which the service provider is established. The aim is to ensure that the Member State of establishment has an opportunity to inform the issuing Member State if the removal order would “impact [its] fundamental interests”. We ask the Minister how effective this consultation procedure is likely to be in practice, given that a hosting service provider will 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.

5.11Pending further developments within the European Parliament, 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.

Full details of the documents:

Proposal for a Regulation of the European Parliament and of the Council on preventing the dissemination of terrorist content online: (40069), 12129/18 + ADDs 1–3, COM(18) 640.

Previous Committee Reports

Forty-sixth Report HC 301–xlv (2017–19), chapter 16 (28 November 2018) and Forty-first Report HC 301–xl (2017–19), chapter 6 (24 October 2018).


72 For an overview of the Commission’s proposal, see the European Commission’s fact sheet published on 12 September 2018, A Europe that protects: Countering terrorist content online.

73 Article 5.

74 See Articles 3(1) and 6(4).

75 See recital (5) of the general approach text.

76 See Article 4(a) of the general approach text.




Published: 15 January 2019