The proposed Regulation is legally and politically important because:
6.1This , first put forward in September 2018, is intended to transform the handling of online terrorist content by empowering national authorities to order its removal within an hour of its appearance on the web and requiring online platforms to take active steps to detect and prevent the dissemination of terrorist propaganda. Applying a uniform set of rules would, the European Commission believes, be far less burdensome for companies operating within the EU’s digital Single Market than the current patchwork of national rules. The Council agreed its on the proposed Regulation in December 2018, with the European Parliament deciding on its in April 2019. Progress in agreeing a compromise text has been hampered by the Covid-19 pandemic and by concerns that the safeguards needed to strike the right balance between public security and the protection of fundamental rights do not go far enough.
6.2The Government has followed the negotiations closely, recognising that there are important synergies between the proposed Regulation and its own domestic agenda to legislate on a broader range of online harms, as set out in the Government’s published in April 2019. The Government has made clear that this is an area in which it would want to ensure alignment of EU and UK law after the post-exit transition period has ended because the challenges posed by online harms are “inherently cross-border in nature”.
6.3In his , the Minister for Security (Rt Hon. James Brokenshire MP) informed us that the German Presidency was keen to restart negotiations with a view to agreeing a compromise text. Since then, EU home affairs ministers have called for negotiations to be completed “by the end of the year”, stating:
The aim is to enable [the] issuing [of] removal orders with cross-border effect to create a new and rapid and effective instrument to counter terrorist content online within an hour or less of its being reported, while maintaining effective safeguards for the protection of fundamental rights.
6.4In his , the Minister responds to our request for a progress report on the negotiations and to questions we raised about the timescale for introducing domestic legislation to counter online harms and how that legislation might be affected by the EU’s regulatory framework. Noting first that the UK no longer has direct knowledge of the trilogue negotiations taking place between the Council, European Parliament and Commission, the Minister identifies three “key concerns” which are the focus of discussions: the cross-border jurisdiction of removal orders, the use of automated tools by online platforms to identify and take down terrorist content proactively (without waiting for a removal order), and the protection of material disseminated for educational, journalistic, artistic or research purposes. He indicates that it is too early to say how these issues will be resolved in the final compromise text.
6.5Turning to the Government’s timetable for domestic legislation on online harms, the Minister expects the Government’s full response to its White Paper (setting out the basis for future UK legislation) to be published “later in the autumn, with a view to introducing Online Harms legislation when parliamentary time allows”. The Government response is therefore likely to be available before trilogue negotiations on the proposed Regulation are concluded, but domestic legislation is likely to follow after the EU framework for regulating online terrorist content has been agreed. The Minister continues:
We do not assess that the scope or content of the EU’s Regulation will affect or constrain the UK’s ability to legislate on online harms. The UK’s proposed legislation is more ambitious than the EU’s TCO [terrorist content online] Regulation in many ways: it is not specific to any one single online harm and includes ‘legal but harmful’ material within its scope, including (but not limited to) cyberbullying and pro-anorexia content. The EU’s TCO Regulation applies solely to terrorist content, as defined in the EU’s Terrorism Directive of 2017, so is much more narrowly-focussed. The UK’s proposed legislation is also more ambitious in its intention to establish a duty of care for platforms to take reasonable steps to protect their users from harms, whilst the EU’s TCO Regulation is centred more around a notice and takedown regime.
6.6The Minister draws our attention to proposals (currently being finalised by the Commission) for an EU Digital Services Act which will be broader in scope than the proposed Regulation on online terrorist content and address “user safety in the context of a broader set of online harms”. The Government intends to monitor the proposals as they develop and how they may affect internet users in the UK. He concludes:
I am clear that constructive engagement with the EU, as a friendly, likeminded partner, on a range on policy issues, including online harms, will remain important in the future. Officials within the Home Office and the UK Mission to the EU in Brussels are in regular dialogue to facilitate engagement where needed and promote a positive bilateral relationship.
6.7Write to the Minister:
Thank you for your letter of updating us on the progress of trilogue negotiations on a proposed Regulation to prevent the dissemination of terrorist content online. We note that, since you wrote, EU home affairs ministers have called for the negotiations to be concluded by the end of the year. They have also urged the European Commission to present “an ambitious Digital Services Act” which would strengthen the obligations on internet companies to remove other forms of illegal online content and introduce new penalties while also ensuring respect for fundamental rights, including freedom of expression and opinion.
As I noted in , the Committee recognises that there may be important synergies between the EU’s approach to regulation in this important area and the Government’s domestic agenda, as set out in the published in April 2019. Indeed, the Government has previously made clear that it would “want to ensure alignment of UK and EU law, particularly in an area which is inherently cross-border in nature”. We therefore look forward to receiving a further update on the outcome of trilogue negotiations on the proposed Regulation.
We agree that it will be important to monitor wider EU developments, such as the proposed EU Digital Services Act, to help inform the regulatory choices available to the UK as it introduces its own legislation to tackle online harms, to understand how the EU’s regulatory framework may affect businesses, consumers and other online users in the UK, and to manage the consequences of regulatory divergence. We look forward to discussing future scrutiny arrangements with the Government, as well as its role in facilitating effective scrutiny by Parliament, as the end of the post-exit transition period approaches.
98 Proposal for a Regulation on preventing the dissemination of terrorist content online; Council number 12129/18 + ADDs 1–3, COM(18) 640; Legal base—Article 114 TFEU, ordinary legislative procedure, QMV; Department—Home office; Devolved Administrations consulted; ESC number 40069.
99 See our predecessor Committee’s Seventy-third Report HC 301–lxxi (2017–19), (4 September 2019) for further details on the European Parliament’s position. See also ESC’s Forty-sixth Report HC 301–xlv (2017–19), (28 November 2018) and Fiftieth Report HC 301–xlix (2017–19), (9 January 2019).
100 See the Committee’s earlier Reports: Forty-first Report HC 301–xl (2017–19), (24 October 2018) and Twenty-third Report HC 229–xix (2019–21), (1 October 2020).
101 See the from the then Minister for Security and Economic Crime (Rt Hon. Ben Wallace MP) to the Chair of the European Scrutiny Committee.
102 See the , 13 November 2020.
103 See the , 13 November 2020.
104 See Command Paper 57. In February 2020, the Government published an to the consultation launched by the White Paper. It said that legislating on Online Harms was a key priority for the Government but has yet to publish a draft Bill.
105 See the from the then Minister for Security and Economic Crime (Rt Hon. Ben Wallace MP).