Documents considered by the Committee on 28 November 2018 Contents

16Preventing the dissemination of terrorist propaganda online

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; scrutiny waiver granted; 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

16.1In his State of the Union speech in September 2018, European Commission President Jean-Claude Juncker announced that the EU would be proposing “new rules to get terrorist content off the web within one hour — the critical window in which the greatest damage is done”.108 The purpose of the Commission’s proposal for a Regulation is to introduce harmonised rules ensuring that online terrorist content is identified and removed as quickly as possible whilst safeguarding freedom of expression and information. It would require online platforms to take proactive measures to prevent the dissemination of terrorist content; empower national authorities to issue a legally binding removal order to take terrorist content off the web within an hour; introduce penalties for platforms which fail to remove terrorist content 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.109 The proposed Regulation includes a range of safeguards in recognition of “the fundamental importance of freedom of expression and information in an open and democratic society”.110 Our earlier Report agreed on 24 October 2018 provides a detailed overview of the proposal.

16.2The proposed Regulation cites an internal market legal base—Article 114 of the Treaty on the Functioning of the European Union (TFEU)—as the Commission considers that harmonised rules will provide “clarity and greater legal certainty”, strengthen trust in the online environment and prevent the emergence of different regulatory approaches across the EU which would impede the functioning of the internal market, “creating unequal conditions for companies as well as security loopholes”.111 The Commission is keen to secure the adoption of the proposed Regulation before the next European Parliament elections in May 2019 (meaning that it would have to approved by March 2019 at the latest) and envisages that the proposal would take effect six months after its formal adoption and entry into force.

16.3In his informative Explanatory Memorandum (see part one and part two), the Minister for Security and Economic Crime (Mr Ben Wallace) 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”, following the publication later this year of a White Paper covering “the full range of online harms”. 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.

16.4The Minister underlined the need for “automated tools and proactive action” by tech companies to counter the speed at which terrorist content is disseminated and expressed “full support” for the provisions in the proposed Regulation requiring hosting service providers to take proactive measures to prevent the dissemination of terrorist content. Whilst the Government would have preferred to go further in fleshing out the proactive measures to be taken by hosting service providers, he recognised that the Commission had to act “within the limiting parameters of the E-Commerce Directive“ which prevents Member States from imposing on service providers a general obligation to “monitor the information which they transmit or store” or “actively to seek facts or circumstances indicating illegal activity”.112

16.5The Minister expressed concern that the provisions on penalties would leave too much discretion to Member States, creating a risk that they could choose to set a low bar to attract investment by tech companies, and anticipated that the Commission would be invited to produce guidance “to harmonise penalties across Member States”.

16.6We asked the Minister:

16.7Noting the Minister’s concern about the provisions on penalties, we asked:

16.8We questioned whether the proposed Regulation (including its recitals) provided sufficient clarity and legal certainty regarding the obligations applicable to the providers of information society services under this and other EU laws, especially the E-Commerce Directive, and sought the Minister’s views. We also asked him to clarify the circumstances in which it would be appropriate to make a referral rather than issue a removal order under the proposed Regulation, given that for referrals there is no set time limit within which hosting service providers would be required to remove the offending content or disable access to it.

16.9In his letter of 7 November 2018, the Minister informs us that Member States are “broadly supportive” of the proposed Regulation and that the Presidency is likely to invite the Council to agree a general approach in December. Whilst Member States are keen to secure an overall agreement by end March 2019, meaning that the UK would be able to vote on the proposal before leaving the EU, this will depend on the European Parliament agreeing its own position in time. The Government has not put forward any specific textual changes to the proposed Regulation, focusing instead on “seeking greater clarification where the text is vague” and questioning how some of the provisions (for example, on proactive measures) would work in practice. The Council has, however, agreed a change which would give Member States twelve rather than six months in which to make any adjustments needed to give effect to the Regulation once it has been formally adopted. The Minister does not consider that any changes to domestic law will be necessary.

16.10At the time of writing, the Minister says that there has been no substantive discussion of Article 18 on the penalties applicable to hosting service providers if they fail to comply with the obligations set out in the proposed Regulation. As the Commission has made clear that it is for Member States to define the type and level of penalties, he does not anticipate that this part of the proposal is likely to change. He confirms the Government’s view that the inclusion of criminal sanctions would require the addition of a Title V (justice and home affairs—”JHA”) legal base and bring into play the UK’s Title V opt-in Protocol. He continues:

The Commission have made clear that they would not want to change the legal base from Article 114 TFEU or combine with a JHA legal base (a position we have supported). Member States have also suggested whether there could be a minimum penalty threshold, alongside the 4% maximum, however the Commission stated that there was no precedent in EU law for this and therefore would not take this suggestion forward.

16.11The Minister acknowledges the risk that leaving detailed rules on penalties (bar the 4% maximum) to the discretion of each Member State could lead to a fragmented approach and the possibility that hosting service providers might choose to locate their headquarters or legal representative in the Member State with the lowest penalties. Whilst it is “not certain” that Member States would intentionally undercut one another to secure investment, the Government would support some agreed non-binding principles or ‘guidance’, coordinated by the Commission or Presidency, to mitigate this risk. He continues:

This could include greater clarity on what is deemed ‘effective, proportionate and dissuasive’ as well as the degree of non-compliance that might be considered as ‘systematic failure’ and trigger the maximum penalty of 4% global turnover—a question the UK has raised in negotiations. Should the Commission pursue this idea, any guidance or agreed principles for Member States would be separate to the Regulation and therefore would be non-binding. Despite this, we believe it would still be a useful agreement to have in place.

16.12 The Minister notes our concern that a lack of clarity in the type and level of penalties and the risk of a large fine might induce excessive caution on the part of hosting service providers (“HSPs”) and an “overzealous” approach to removals. He makes clear, however, that Member States would be required to provide “clear detail, including a URL and where necessary, additional information enabling the identification of the content referred” and that removal orders would have to match “clear parameters of terrorist activity and terrorist content” and would be judicially reviewable. These and other safeguards (for example, requirements on transparency and an effective mechanism for complaints) mean that there would be “very limited instances of HSPs taking down content that is not illegal, goes against the principles of freedom of expression or goes further than the request made by the Member State”. The Minister adds that there has been some discussion about the possibility of setting up a central oversight mechanism at EU level to monitor the removal orders being sent to hosting service providers.

16.13The Minister explains that the proposed Regulation intentionally includes a mechanism to make a referral (placing the onus on the hosting service provider to assess the nature of the content) and to issue a removal order so that Member States have the flexibility to decide “which to use and when”. He continues:

For the UK, we have been working to prevent terrorist use of the internet for many years and the Met’s Counter Terrorism Internet Referral Unit (CTIRU) have established a good relationship with some of the major HSPs, taking on trusted flagger status. This has given us a good response rate from companies following referral of terrorist content and has meant that we have relied on the referral mechanism rather than resorting to removal orders (which the UK’s Terrorism Act does provide for). However, not all companies are/will be cooperative and it is in these cases, where a HSP shows a reluctance or ambivalence to engage with law enforcement on terrorist content, that a legally binding removal can usefully be imposed on them.

16.14Finally, the Minister considers that the proposed Regulation provides sufficient legal certainty for HSPs who are also bound by the E-Commerce Directive (“ECD”):

Our current view, supported by the Commission, is that the proactive measures called for in Article 6 of the draft Regulation can be reconciled with Article 15 of the ECD, in view of the fact that it would constitute ‘specific’ identification of terrorist content and targeted measures, as opposed to a ‘general obligation to monitor’. This is supported by the recitals which also include reference to the ability of this Regulation to derogate from the ‘general monitoring’ approach.

16.15He would nonetheless support the inclusion of specific wording within the operative parts of the proposed Regulation (the Articles themselves rather than simply in the recitals) to clarify the relationship between the obligations set out in this proposal and in the E-commerce Directive.

Our Conclusions

16.16We are grateful to the Minister for addressing the questions we raised in our earlier Report. The only change of substance in negotiations so far is to extend the time available to Member States—from twelve months rather than six—to make any adjustments needed before the Regulation becomes applicable at national level. This short extension means that the Regulation is still likely to take effect during the post-exit transition/implementation period envisaged in the draft EU/UK Withdrawal Agreement and so would be binding on and directly applicable in the UK, at least until the end of transition.

16.17We note the Presidency’s intention to seek a general approach on the proposed Regulation at the Justice and Home Affairs Council on 6/7 December 2018. Given the Government’s support for regulatory action at EU level to tackle online terrorist content, we can see some advantage in bringing the matter to the Council while the UK is still able to influence and vote on the general approach. As the compromise text to be brought to Council is unlikely to necessitate any changes to domestic law, we are willing to grant a scrutiny waiver for the forthcoming Council so that the Government is able to express its support. We ask the Minister to report back to us on the outcome of the Council, to explain whether any decision has been made to set up a central oversight mechanism at EU level to monitor removal orders being sent to hosting service providers, and to provide a summary of any changes sought by the European Parliament once it has agreed its position.

16.18Meanwhile, 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 on preventing the dissemination of terrorist content online: (40069), 12129/18 + ADDs 1–3, COM(18) 640.

Previous Committee Reports

Forty-first Report HC 301–xl (2017–19), chapter 6 (24 October 2018).


108 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.

109 Article 5.

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

111 See p.5 of the Commission’s explanatory memorandum accompanying the proposed Regulation and recital (1) of the proposed Regulation.

112 See Article 15 of Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) and recital (19) of the proposed Regulation.




Published: 4 December 2018