The Proposed Regulation on Preventing the Dissemination of Terrorist Content Online: Safeguards and Risks for Freedom of Expression

Abstract

In September 2018, the European Commission released its proposal for a Regulation on preventing the dissemination of terrorist content online. As stated in the Explanatory Memorandum, terrorists ‘misuse the internet to groom and recruit supporters, to prepare and facilitate terrorist activity, to glorify in their atrocities and urge others to follow suit’. The misuse, as further explained, highlights the “particular societal responsibility” of internet platforms to protect their users from exposure to terrorist content. The Explanatory Memorandum notes that several hosting service providers have put in place certain voluntary measures to tackle terrorist content on their services. The measures, however, are not considered sufficient. The proposal, therefore, attempts to address the problem of terrorist content disseminated online by imposing certain obligations on hosting service providers. As set out in Article 1, the proposal lays down: 1) rules on duties of care to be applied by hosting service providers to prevent the dissemination of terrorist content and ensure its swift removal; and 2) a set of measures to be put in place by Member States to identify terrorist content, to enable its swift removal by hosting service providers and to facilitate cooperation between stakeholders. In particular, the proposal describes several methods to prevent dissemination of terrorist content online, for example, content referrals, removal orders, and proactive measures. Importantly, the proposal also includes a number of safeguards that attempt to prevent disproportionate interference with fundamental rights, in particular the right to freedom of expression and access to information. The aim of this paper is to analyse the proposed regulation for the prevention of online terrorist content from the perspective of the current legal framework, including the EU Charter of Fundamental Rights, and the accompanying CJEU case law. The analysis provided here is not intended to be exhaustive. Rather, the purpose of the paper is to highlight specific elements of the proposal that raise particular concerns from the perspective of the existing framework. On 3 December 2018, the EU Council released its version of the proposal (general approach). The paper focuses on the Commission’s proposal but points out relevant changes in the Council’s general approach.