By Yannic Blaschke

On 23 January 2019, the Rapporteur for the European Parliament Committee on Civil Liberties (LIBE), Daniel Dalton (ECR), published his Draft Report on the proposal for a Regulation on preventing the dissemination of terrorist content online. This Report by the lead Committee of the dossier follows the publishing of the Draft Opinions by the two other European Parliament Committees involved in the debate: the Committee on Internal Market and Consumer Protection (IMCO) and the Committee on Culture and Education (CULT).

Overall, LIBE’s Draft Report addressed only some of the many pressing issues of the Regulation which present serious risks for fundamental rights. Unfortunately, the Report therefore falls somewhat short of the ambitions to which a Committee dealing with civil liberties should aspire. This is even more disappointing after the comprehensive stance taken in the IMCO Draft Opinion, which includes more than twice as many amendments as the LIBE Draft Report.

LIBE’s Draft Report contains, in summary, the following positive points:
– it limits the scope of the Regulation to services that are available to the public (excluding, for example, file lockers from the scope)
– it addresses the need for reporting obligations from competent authorities

However, the Draft Report:
– does not tackle the manifest flaws of the measure of referrals from governments to companies for “voluntary consideration”, which would make Big Tech companies the Internet Police
– does not drastically modify or delete the problematic “proactive measures”, which can only lead to upload filters and other very strict content moderation measures, even though it reminds the legislator about the existing prohibition of general monitoring obligations in the EU
– does not address the problems caused by a lack of alignment of the definition of terrorist content with the Terrorism Directive

On a positive note, the scope of the Terrorist Content Regulation is more narrowly defined in the LIBE Draft Report, being limited now to services which are available to the public. On reporting obligations, it is a welcome addition that the report foresees an evaluation of the Regulation’s impact on the freedom of expression and information in the Union after a maximum of three years following the implementation of the legislation. Regarding the possibility for national authorities to impose proactive measures on online companies, the Draft Report furthermore contains some mitigating clauses, such as a consideration of a platform’s “non-incidental” exposure to terrorist content, or the reminder of the prohibition in EU law of general monitoring obligation for hosting providers. Finally, the Draft Report proposes some adjustments regarding remedies and safeguards. It gives a two week’s deadline for answering complaints by citizens whose content was removed or to which access was denied. The Draft Report also insists that the private complaint mechanisms of internet platforms do not preclude citizens from seeking legal redress before Member State’s courts.

However, Dalton MEP has disappointingly chosen not to address in the referrals of content to platforms for their “voluntary consideration”. These referrals could give national authorities an “escape route” from their human rights obligations by merely suggesting blocking of content which might be unpleasant , but not illegal and thus not suitable to require a removal orders, for a given government. Furthermore, the Rapporteur did not tackle the urgent need of reforming the definition of “terrorist content”, which three United Nations (UN) Special Rapporteurs had previously flagged as a key concern. The vagueness of the definition in the Commission proposal thus persists and  could threaten the work of journalists and NGOs documenting terrorist crimes. Finally, the “proactive measures” have not received the attention and intensive modification they need and they could still lead to de facto general monitoring obligations.

To summarise, the LIBE Draft Report lacks the ambition that would be expected from the Civil Liberties Committee and falls short from the much more comprehensive reworks delivered by the IMCO and CULT Committees. All involved Members of the European Parliament should cooperate and significantly strengthen the negligent and rushed Commission proposal, in particular in regard to the highly dangerous measures of referrals and proactive measures. Serious problems require serious legislation.

Terrorist Content Regulation: Document pool
https://edri.org/terrorist-content-regulation-document-pool/

CULT: Fundamental rights missing in the Terrorist Content Regulation (21.01.2019)
https://edri.org/cult-fundamental-rights-missing-in-the-terrorist-content-regulation/

Terrorist Content: IMCO draft Opinion sets the stage right for EP (18.01.2019)
https://edri.org/cult-fundamental-rights-missing-in-the-terrorist-content-regulation/

Terrorist content regulation – prior authorisation for all uploads? (21.11.2018)
https://edri.org/terrorist-content-regulation-prior-authorisation-for-all-uploads/

EU’s flawed arguments on terrorist content give big tech more power (24.10.2018)
https://edri.org/press-release-eu-terrorism-regulation-an-eu-election-tactic/

Joint Press Release: EU Terrorism Regulation – an EU election tactic (12.9.2018)
https://edri.org/press-release-eu-terrorism-regulation-an-eu-election-tactic/

(Contribution by Yannic Blaschke and Diego Naranjo)