As a follow-up on its Communication of September 2017 on tackling illegal online content, the European Commission has published a non-binding “Recommendation” which formally lays down operational measures which online platforms and Member States should take, before it determines whether it is necessary to propose legislation to complement the existing regulatory framework. The Recommendation applies to all forms of illegal content which are not in compliance with EU or Member State law, such as terrorist content, racist or xenophobic illegal hate speech, child sexual exploitation, illegal commercial practices, breaches of intellectual property rights and unsafe products. The Recommendation puts pressure on online platforms to implement more proactive measures to ensure faster detection and removal of illegal content online. It has been criticised by digital human rights organisations as essentially forcing online platforms to “voluntarily” police and censor the internet, without respect for the fundamental right to freedom of expression.
The Commission acknowledges that progress has been made in regard to removing illegal content through voluntary arrangements, including 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. For example, in regard to the Code of Conduct, internet companies now remove on average 70% of illegal hate speech notified to them and in more than 80% of these cases, the removal takes place within 24 hours. However, notwithstanding this progress, the Commission states that illegal content online remains a serious problem within the EU. It states that the Recommendation is without prejudice to the position of hosting service providers under the e-Commerce Directive 2000/31/EC, and the enforcement of their terms of service in accordance with EU and national law. The e-Commerce Directive contains liability exemptions available to certain online service providers, including ‘hosting’ service providers, where they act expeditiously to remove or disable access to illegal content that they store upon obtaining knowledge of such content.
The Recommendation relates to the activities of all hosting service providers, irrespective of whether they are established in the EU or in a third country, provided that they direct their activities to consumers residing in the EU. The Commission’s recommendations include:
- Takedown notices – Hosting providers should provide mechanisms for the public to submit takedown notices. Those mechanisms should be easy to access, user-friendly and allow for the submission of notices by electronic means.
- Informing content providers – Where a hosting service provider decides to remove illegal content, it should inform the content provider of that decision, as well as the possibility to contest that decision via a counter notice, unless it is manifest that the content is illegal, or a law enforcement authority has requested that the content provider is not informed for reasons of public policy and public security.
- Out of court dispute settlements – Member States are encouraged to facilitate, where appropriate, out-of-court settlements to resolve disputes related to the removal of illegal content.
- Transparency – Hosting service providers should publish explanations to the general public on their content management policy and, at regular intervals (at least annually), reports on their activities relating to the removal of illegal content. Those reports should include, in particular, information on the amount and type of content removed, on the number of notices and counter-notices received and the time needed for taking action.
- Proactive measures – Hosting service providers are encouraged to take proactive measures to identify and remove illegal content, including automated means such as upload filters, where appropriate.
- Safeguards – To accurately assess whether content identified via automated tools is actually illegal, hosting providers should put in place necessary safeguards, including a human review step before content is removed.
- Cooperation between hosting providers and member states – Fast-track procedures should be provided to process notices submitted by law enforcement authorities. Member States are encouraged to establish legal obligations for hosting service providers to promptly inform law enforcement authorities of any evidence of alleged serious criminal offences involving a threat to the life or safety of persons obtained in the context of their removal of illegal content.
- Cooperation between hosting providers – Hosting service providers should, where appropriate, share experiences, technological solutions and best practices to tackle illegal content online among each other.
- No hosting of terrorist content – Hosting providers should explicitly state in their terms of service that they will not host terrorist content.
- One-hour takedown rule – As terrorist content is particularly harmful, hosting providers should as a general rule remove such content within one hour of its flagging by law enforcement authorities and Europol.
- Regular and Transparent Reporting – Member States should submit information to the Commission on the removal of terrorist content within three months, and illegal content within six months.
The Commission will be monitoring actions taken by online platforms in response to the Recommendation, and has will then determine whether further regulatory measures, including legislation, is required.