EU: Online terrorist content: fundamental rights at risk in secret talks on new legislation


EU institutions are in the middle of secret negotiations on new rules that would simplify the removal of “terrorist content” hosted online, but there are serious concerns that some of the measures would breach fundamental rights standards.

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The proposed ‘Regulation on preventing the dissemination of terrorist content online’ would oblige online hosting services to take action against the dissemination of terrorist content via their platforms – for example, by including provisions in their terms and conditions and moderating content – and would also give new powers to states to issue cross-border removal orders, letting the authorities in one EU member state order the removal of content hosted by a service provider located in another member state.

In a document obtained by Statewatch (pdf), the Council of the EU argues that the current compromise text being discussed with the Parliament “strengthens fundamental rights” in the cross-border removal procedure, but there are doubts amongst some on the Parliament’s side and civil society organisations. Liberties are calling on people to contact their MEPs to demand changes to the proposed rules.

The Council states that when one member state issues a removal order to a service provider located in another member state, the latter “is entitled to scrutinise cross-border removal orders,” and thus “takes a binding decision.”

Under the current text – also obtained by Statewatch and available here (pdf) – a member states’ authorities can choose whether or not to assess a removal order, unless they are requested to do so by the hosting provider concerned, which may allow abusive or poorly-reasoned orders to go unchallenged. The authorities of a state opposed to domestic nationalist and separatist movements – for example Spain, Catalonia and the Basque Country – could seek to remove content with which they disagree.

This is particularly concerning given that, as it stands, the text fails to ensure that the “competent authorities” for issuing removal orders must be an independent judicial or administrative authority – thus meaning that the task could be handed to a police force or other body.

Another serious issue relates to the possible use of automated upload filters. A previous version of the Regulation would have obliged service providers to introduce technology to automatically scan all uploads for potential infringements of the rules. As highlighted by a group of human rights organisations, including Statewatch, this compromises “freedom of expression, freedom to access information and personal data protection” and is “not legal under EU law”.

The Council underscores that the current compromise text of the Regulation “clearly states that there is no general obligation to use automated tools.” However, this is not the same thing as clearly prohibiting the use of such automated tools.

Some in the Parliament are also concerned that the current compromise text does not provide sufficient safeguards for educational, artistic, journalistic or research use of controversial material; contains no exception from penalties for small service providers who would not be in a position to apply with the one hour deadline for removal of content.

The text of the Regulation is being negotiated in secret ‘trilogue’ meetings attended by officials from the Council, Commission and Parliament. The next meeting will take place tomorrow (10 December) and there may be further talks if no agreement is reached.


Further reading

16 November 2020

EU: Regulation on terrorist content online - Council position paper for discussions with European Parliament

10 November 2020

Open letter on behalf of civil society groups regarding the proposal for a Regulation on Terrorist Content Online

05 November 2020

EU: Unprecedented, far-reaching EU regulation on preventing terrorist content online endangers freedom of speech and of the media as well as the online community

10 April 2019

EU: Terrorist content online: Civil Liberties Committees makes improvements but proposal still dangerous

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