European Union Regulations and Policies
The European Union has recently updated its existing set of rules and strategies to face the growing threat of terrorism, including terrorist use of the internet, in the territories of its 28 Member States. Specifically, efforts have been made to build joint capacity for preventing and detecting new forms of terrorism; strengthening checks at external borders; and establishing, together with Europol, a specific body to tackle terrorist propaganda online: the EU Internet Referral Unit. In September 2018, the European Commission published a proposal that addresses issues of terrorist content on the internet, the Proposal for a Regulation on Preventing the Dissemination of Terrorist Content Online.
The European Union shares competences in the areas of freedom, security and justice with the Member States as provided by Art. 4 of the Treaty on the Functioning of the European Union (TFEU). Within this area, policies are focusing, among others, on counterterrorism, organized crime, cybercrime and radicalization. In addition, Art. 83 of the TFEU grants to the European Parliament and the Council the competence of establishing minimum rules concerning transnational crime such as terrorism and computer crime. A key European legal instrument in place regarding terrorist content online is Directive 2017/541 on combating terrorism. Preamble 10, 22 and 23 of the Directive mention the offense of public provocation to commit a terrorist act, the glorification and justification of terrorism, the dissemination of messages, and the removal of such content from online platforms. This is stated as well under Art. 5, according to which Member States must criminalize the dissemination of messages inciting to terrorism. Art. 5 can be read in conjunction with Art. 21, which creates an obligation for Member States to “ensure the prompt removal of online content constituting a public provocation to commit a terrorist offense, as referred to in Art. 5, that is hosted in their territory”. In cases where the prompt removal of the illegal content is not possible, Member States are required to take measures to block access to it.
The Directive requires these measures to be transparent and in accordance with the principles of necessity and proportionality (Art. 21(3)). Following Directive 2017/541, which has been in force since 2017, the European Commission published in September 2018 a Proposal for a Regulation on Preventing the Dissemination of Terrorist Content Online. In addition to Directive 2017/541 on combating terrorism, the Proposal also complements the Commission’s Communication on tackling illegal content online, towards enhanced responsibility of online platforms and its Recommendation on measures to effectively tackle illegal content online. The Proposal aims to harmonize Member States’ legislation criminalizing terrorist offenses, giving particular attention to Art. 21 of Directive 2017/541. The Regulation would apply to all internet companies offering services in the EU irrespective of the geographical location of their headquarters (Art. 1). The removal of illegal terrorist content would be ensured through removal orders issued by competent authorities and directed towards hosting service providers, including SMPs, that will be required to remove or disable the access to such content within one hour from receipt of such a removal order (Art. 4). Hosting service providers will be granted discretionary power in cases of referrals by the authorities, where the providers will have to proceed with an assessment of the content signaled and decide if they will remove that content or disable access to it (Art. 5). Finally, hosting service providers have an obligation to take proportionate proactive measures to protect their services against the dissemination of terrorist content ensuring the protection of freedom of expression of their users (Art. 6). Under Art. 10, the Regulation establishes effective and accessible mechanisms allowing content providers to challenge the removal of the alleged illegal content and request its reinstatement. Overall, the Regulation defines a clear share of responsibilities between the hosting service providers, Member States and Europol. In fact, the latter shall facilitate referrals and removal orders and act as a point of contact for hosting service providers throughout the EU.
This Regulation represents the current joint effort made by the countries of the European Union to face the new trends and challenges created by online terrorist activities. Particularly, in the revised EU Strategy for Combating Radicalization and Recruitment to Terrorism of 2014, the Council of the European Union recognized the role of the internet and social media as tools for conducting propaganda, fundraising, recruiting and exchanging information. In order to counter these activities, the EU is advocating for the establishment of an effective dialogue with the private sector at a global level and for the promotion of counter-narrative messages.
UN human rights experts have raised concerns about the Proposal. On 7 December 2018, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the right to privacy, and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism published a joint report, expressing their views regarding “the overly broad definition of terrorist content in the Proposal that may encompass legitimate expression protected under international human rights law”. The three UN Special Rapporteurs called upon the EU to adopt a fully human rights-compliant approach, noting that “the mechanisms set up in Articles 4-6 may lead to infringements to the right to access to information, freedom of opinion, expression, and association, and impact interlinked political and public interest processes”.