The European Parliament has officially adopted the EU Directive on Combatting Terrorism, which is designed to give police and prosecutors across the EU the ability to “fight and counter terrorism more effectively and ensure a common response to the evolving terrorist threat.”
The Directive includes “measures against public provocation online”, which state that Member States must “ensure the prompt removal of online content constituting a public provocation to commit a terrorist offence” that is hosted in their territory, and must also “endeavour to obtain the removal of such content hosted outside of their territory.” If removing the content is not feasible, Member States may block access to the content for internet users within their territory (but only after first attempting to remove the content at source). The duty is therefore placed on the Member State to exhaust all reasonable avenues for removing the content before it can consider blocking access to it, which will be warmly welcomed by service providers.
The Directive states that such measures of removal and blocking “must be set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is necessary and proportionate, and that users are informed of the reason for the restriction.” These safeguards must also include the possibility of judicial redress.
Importantly, the Directive also states that removal or blocking of terrorist content should be without prejudice to service providers’ protections under the EU e-Commerce Directive. This means that no general obligation can be imposed on service providers “to monitor the information which they transmit or store,” nor can they be obliged to “actively seek facts or circumstances” indicating the presence of terrorist content. Furthermore, hosting service providers will not be held liable for hosting terrorist content as long as they do not have “actual knowledge of illegal activity or information and are not aware of the facts or circumstances from which the activity or information is apparent.” This will be of great relief to Internet intermediaries.
The Directive must now be transposed into national law by Member States within 18 months. However, it will not apply to the UK and Ireland as both states have exercised their right to opt-out of EU policing and criminal law measures (although they may opt back in at any time subject to approval by the European Commission, the UK has stated that it will not do so), or to Denmark, which does not participate in such measures.
For more information, see: the EU Directive on Combatting Terrorism