Cleared from scrutiny
(a) Commission recommendation of 1.3.2018 on measures to effectively tackle illegal content online; (b) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Tackling Illegal Content Online Towards an enhanced responsibility of online platforms
Digital, Culture, Media and Sport
9.1The European Commission has adopted a Recommendation entitled ‘on measures to effectively tackle illegal content online’, which follows on from an EU Commission published on 28 September 2017 entitled ‘Tackling Illegal Content Online—towards an enhanced responsibility of online platforms”, which the Committee retained under scrutiny in its on 29 November 2017.
9.2The Communication did not harmonise the definition of what constitutes illegal content, but provided voluntary guidance to online platforms and online services that host content on the notification and removal of illegal online content. The Communication also clarified that the exemptions from liability granted to service providers by the Electronic Commerce Directive (ECD) would not be affected if providers played an active a role in monitoring and removing illegal content from their platforms. The Government expressed support, in its response to the proposals, for the Commission’s guidance, stating that tackling the proliferation of illegal content online was a key Government priority and that EU-level action was appropriate.
9.3In a response to the Committee’s report, the Minister of State at the Department for Digital, Culture, Media and Sport (Margot James) provided an update in which she noted that the Member States were split on whether future legislation was necessary: some Member States reportedly thought that the guidance provided in September 2017 should be made mandatory, others wanted changes to the liability provisions contained in the e-Commerce Directive, while some Member States expressed scepticism about the need for any future legislation and considered that the Commission should give the guidance time to bed in before considering what steps are needed.
9.4The Commission’s recommendation builds upon the Communication and suggests a set of formal, but still voluntary, operational measures for hosting providers to remove illegal material. The recommendation provides guidance to online services that host content only, such as social media, cloud storage, and video sharing sites.
9.5Two sets of measures are recommended: those which would apply to all types of illegal content; and supplementary provisions which would only apply to terrorism-related content. Both sets of measures are summarised in the background section of this report. Among these are provisions that:
9.6In relation to terrorist content specifically, it is recommended that hosting providers:
9.7The recommendation also suggests that platforms and Member States should report on actions taken in response to the Recommendation, in order to establish whether further action, potentially including legislation, is needed. Providers have been asked to report on actions taken within three months for terrorist content and six months for other illegal content. Similarly, Member States have been asked to report every three months to the Commission on how well they believe that online businesses have responded to the Commission’s recommendation with respect to terrorist content, and every six months with respect to other types of illegal content.
9.8The Minister of State at the Department for Digital, Culture, Media and Sport (Margot James) states in the Government’s Explanatory Memorandum that tackling the proliferation of illegal online content on platforms and other online services is a key priority for the UK Government, and the Government therefore welcomes the recommendation as “another step in the right direction towards making companies more proactive in their approach to tackling online illegal content”.
9.9The Minister indicates that the Government particularly welcomes the stronger voluntary procedures for the more efficient removal of illegal content online, the specific provisions to further curb terrorist content online, and the provisions which encourage transparency through reporting of action taken, noting that this could enable the Government “to judge the impact of the actions they are taking, and if their actions are not sufficient we could consider further action, including regulation”.
9.10The Minister observes that, following the PM’s at Davos in January, DCMS is reviewing “the legal liability that social media companies have for the illegal content shared on their sites”. This work is being carried out under the auspices of the Digital Charter, which was proposed on 25 January 2018, and which outlines a rolling programme of work to agree norms and rules for the online world and to put them into practice. The Minister states that, in addition to the question of legal liability, the Government’s priorities for the Charter include supporting the digital economy, tackling online harms, data ethics and innovation, disinformation and cyber security.
9.11We have taken note of the Government’s support for the Commission’s recommendation on tackling illegal content online, which encourages hosting service providers to take a more proactive approach to identifying and removing illegal content, and recommends that both providers and Member States should report periodically on what action has been taken in response to it, in order to establish whether further action is necessary. We welcome this proportionate, methodical, evidence-based approach to determining whether future legislative action is necessary and what its scope should be.
9.12We have also taken note that the Government is proactively exploring related issues under the auspices of its Digital Charter, including whether the exemptions from liability created by the Electronic Commerce Directive (EC) 2000/31 should be modified, following the Prime Minister’s speech in Davos in which she observed that “the status quo is increasingly unsustainable as it becomes clear these platforms are no longer just passive hosts”. Given that the exemptions in the ECD are generally considered to have facilitated the growth of the digital economy, the Government’s willingness to review them indicates that it is willing to explore bold approaches in preparing the Charter.
9.13This raises the prospect of the UK diverging from EU rules regarding the digital economy in the future. Such divergence would be consistent with the Prime Minister’s Mansion House speech, in which she observed that “the UK will not be part of the EU’s Digital Single Market” and that, given the fast-evolving nature of the digital economy, “it will be particularly important to have domestic flexibility, to ensure the regulatory environment can always respond nimbly and ambitiously to new developments”. Outside the EU it will be possible for the Government to adopt distinctive regulatory approaches to digital issues more rapidly than when acting in concert with 27 other Member States and the European Parliament.
9.14However, a unilateral regulatory approach may also have negative consequences for the digital sector: divergence will recreate regulatory fragmentation between the UK and the EU, meaning that businesses would have to comply with multiple regulatory regimes, inhibit market scale (which is paramount for digital businesses, which seek to scale their operations as rapidly as possible), and potentially make larger, more integrated markets more attractive destinations for investment. Paradoxically, regulatory divergence in this area thus risks recreating the regulatory barriers the elimination of which was the underlying logic of the UK’s push for the EU to create a Digital Single Market.
9.15We ask the Government to explain to us:
9.16We ask for a clear response to these questions by 25 July. We will feed the Government’s response into the Committee’s ongoing scrutiny of Digital Single Market Strategy proposals. We now clear these non-legislative documents from scrutiny.
(a) Commission recommendation of 1.3.2018 on measures to effectively tackle illegal content online: (39535), , C(18) 1177 final; (b) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Tackling Illegal Content Online Towards an enhanced responsibility of online platforms: (39079), , COM(17) 555.
9.17Chapter 2 of the Commission’s recommendation sets out a range of recommendations which apply to all types of illegal content, with the recommendations organised along functional lines, as set out below.
9.18Submitting and processing notices:
9.19Informing content providers and counter-notices:
9.20Out of court dispute settlement:
9.24Protection against abusive behaviour:
9.25Cooperation between hosting services providers and Member States:
9.26Cooperation between hosting providers and trusted flaggers:
9.27Cooperation between hosting services:
9.28In addition to the above measures, which also apply to terrorist content, the Commission advocates a range of measures which specifically relate to terrorist content.
9.29General points include that:
9.30Submitting and processing referrals:
9.33The Commission states that it will monitor actions taken by online platforms in response to this Recommendation and use this to determine whether further steps, including legislation, are required. Platforms have been asked to report within three months (for terrorist content) and six months (for other illegal content) to facilitate this. The Commission also asks that Member States should report to the Commission every three months as to how well they believe that online businesses have responded to this Recommendation with respect to terrorist content, and every six months for all other types of content.
86 Actions recommended in Communication 12879/17 include that businesses should follow the rules outlined in the ECD’s liability provisions; platforms should cooperate with law enforcement to alert them to any illegal activity on their networks; platforms should give priority to removal of illegal content that is notified by “Trusted Flaggers” (specialised entities who have specific expertise in identifying illegal content and thus can be trusted by platforms that what they are notifying is illegal); illegal content that could cause serious harm should be removed more quickly than other types of illegal content e.g. incitement to terrorism material; action should be taken to prevent the re-appearance of illegal material on platforms.
87 Letter from the Minister, DCMS, to the Chair of the European Scrutiny Committee ().
88 Commission Recommendation of 1.3.2018 on measures to effectively tackle illegal content online .
89 HM Gov, Policy paper: Digital charter: A response to the opportunities and challenges arising from new technologies ().
90 We note a previous to the Committee in which the Parliamentary Under Secretary of State at DCMS indicated that some EU Member States also want to make “changes to the liability provisions contained in the e-Commerce directive itself that would make the larger online platforms more responsible for the content they host”, although she concluded that the Member States did not agree on this issue.
91 HM Gov, PM speech on our future economic partnership with the European Union ().
Published: 26 June 2018