EC reinforces illegal online content measures

In its Communication of September 2017 on tackling illegal content online, the European Commission (EC) promised to monitor progress in tackling illegal content online and assess whether additional measures are needed to ensure the swift and proactive detection and removal of illegal content online, including possible legislative measures to complement the existing regulatory framework.

As a follow-up, the Commission is recommending a set of operational measures – accompanied by the necessary safeguards – to be taken by companies and Member States to further step up this work before it determines whether it will be necessary to propose legislation. These recommendations apply to all forms of illegal content ranging from terrorist content, incitement to hatred and violence, child sexual abuse material, counterfeit products and copyright infringement.

The Recommendation builds on the on-going work with the industry through various voluntary initiatives to ensure that the internet is free of illegal content and reinforces actions taken under different initiatives.

“Online platforms are becoming people’s main gateway to information, so they have a responsibility to provide a secure environment for their users,” stated Vice-President for the Digital Single Market Andrus Ansip. “What is illegal offline is also illegal online. While several platforms have been removing more illegal content than ever before – showing that self-regulation can work – we still need to react faster against terrorist propaganda and other illegal content which is a serious threat to our citizens’ security, safety and fundamental rights.”

The spread of illegal content online undermines the trust of citizens in the Internet and poses security threats. While progress has been made in protecting Europeans online, platforms need to redouble their efforts to take illegal content off the web more quickly and efficiently. Voluntary industry measures encouraged by the Commission through the EU Internet Forum on terrorist content online, the Code of Conduct on Countering Illegal Hate Speech Online and the Memorandum of Understanding on the Sale of Counterfeit Goods have achieved results. There is however significant scope for more effective action, particularly on the most urgent issue of terrorist content, which presents serious security risks.

Stronger procedures for more efficient removal of illegal content

The EC’s Recommendation sets out operational measures to ensure faster detection and removal of illegal content online, to reinforce the cooperation between companies, trusted flaggers and law enforcement authorities, and to increase transparency and safeguards for citizens:

• Clearer ‘notice and action’ procedures: Companies should set out easy and transparent rules for notifying illegal content, including fast-track procedures for ‘trusted flaggers’. To avoid the unintended removal of content which is not illegal, content providers should be informed about such decisions and have the opportunity to contest them.
• More efficient tools and proactive technologies: Companies should set out clear notification systems for users. They should have proactive tools to detect and remove illegal content, in particular for terrorism content and for content which does not need contextualisation to be deemed illegal, such as child sexual abuse material or counterfeited goods.
• Stronger safeguards to ensure fundamental rights: To ensure that decisions to remove content are accurate and well-founded, especially when automated tools are used, companies should put in place effective and appropriate safeguards, including human oversight and verification, in full respect of fundamental rights, freedom of expression and data protection rules.
• Special attention to small companies: The industry should, through voluntary arrangements, cooperate and share experiences, best practices and technological solutions, including tools allowing for automatic detection. This shared responsibility should particularly benefit smaller platforms with more limited resources and expertise.
• Closer cooperation with authorities: If there is evidence of a serious criminal offence or a suspicion that illegal content is posing a threat to life or safety, companies should promptly inform law enforcement authorities. Member States are encouraged to establish the appropriate legal obligations.

These measures may differ according to the nature of the illegal content, and the Recommendation encourages companies to follow the principle of proportionality when removing illegal content.

Increased protection against terrorist content online

Terrorist content online poses a particularly grave risk to the security of Europeans, and its proliferation must be treated as a matter of the utmost urgency. This is why the Commission is today additionally recommending more specific provisions to further curb terrorist content online:

• One-hour rule: Considering that terrorist content is most harmful in the first hours of its appearance online, all companies should remove such content within one hour from its referral as a general rule.
• Faster detection and effective removal: In addition to referrals, internet companies should implement proactive measures, including automated detection, to effectively and swiftly remove or disable terrorist content and stop it from reappearing once it has been removed. To assist smaller platforms, companies should share and optimise appropriate technological tools and put in place working arrangements for better cooperation with the relevant authorities, including Europol.
• Improved referral system: Fast-track procedures should be put in place to process referrals as quickly as possible, while Member States need to ensure they have the necessary capabilities and resources to detect, identify and refer terrorist content.
• Regular reporting: Member States should on a regular basis, preferably every three months, report to the Commission on referrals and their follow-up as well as on overall cooperation with companies to curb terrorist online content.

Next steps

The Commission will monitor the actions taken in response to this Recommendation and determine whether additional steps, including, if necessary legislation, are required.

The Commission will also continue its analytical work, working closely with stakeholders, and in this context will launch a public consultation on this matter in the coming weeks.

In order to allow for the monitoring of the effects of the Recommendation, Member States and companies will be required to submit relevant information on terrorist content within three months, and other illegal content within six months.

Broadcaster trade body the Association of Commercial Television in Europe (ACT) welcomed the Recommendation, suggesting that recognition by the Commission that not only content inciting terrorism needs to be tackled, but also all sorts of illegal content, sends a positive signal to the entire European creative sector. “Reinforcing responsibility towards citizens and guaranteeing a fair business environment is the precondition for a thriving European digital economy,” it stated.

“The Recommendation rightly proposes legislative action in future if platforms do not take down illegal content quickly and effectively on a voluntary basis. It is therefore in their interests to make significant improvements to their processes within the next six months,” it said.

Grégoire Polad, ACT, Director General, suggested the Recommendation was a symbolic gesture which paved the way for meaningful action on illegal content online. “Protecting viewers effectively requires take down and stay down measures. More transparency, responsibility and receptiveness is required from platforms to tackle the issues at hand. Right now, platforms are reaping huge rewards from their unregulated businesses and asking society to pay the cost. Europe deserves better,” he declared.

The ACT suggests it is also important to recall the Commission’s September 2017 Communication on Tackling Illegal Content Online, which also highlighted all types of illegal content including violations of copyright protected works. To some extent this went further than the new Recommendation. As Agnieszka Horak, ACT Director of Legal and Public Affairs, points out: “More balance needs to be ensured between the parties concerned. The burden to provide data for right holders should be reasonable and proportionate. Notice mechanisms should deliver faster take down of illegal content rather than frustrate it. Automated detection technologies should be mandatory across all illegal content. Establishing who is a trusted flagger should be based on objective criteria rather than left to the sole judgement of online intermediaries – which are not mere hosting service providers as incorrectly inferred in the EC’s Recommendation.

“Commercial broadcasters are confident that this is the beginning of a new, more muscular approach by European legislators to tackling illegal content online in all its forms. We intend to work closely with them to ensure that creators can continue to invest with confidence in high quality European AV content,” concludes the ACT.