The EU Home Affairs Ministers of the Twenty-eight adopted, on Thursday 6 December in Brussels, their negotiating mandate with the European Parliament on the draft regulation aimed at requiring a provider of online hosting services to remove within the hour terrorist content reported to it by a national authority.
The vast majority of Member States supported this political agreement in principle ('general approach') with a few exceptions Finland is concerned about the consequences of this regulation on fundamental rights. Denmark has constitutional problems with the competent court retained in the text. In a statement, it indicated its willingness to resolve this difficulty in the near future.
On the other hand, countries such as France, Belgium and the United Kingdom, which have been particularly affected by terrorist acts in recent years, have supported the project unreservedly, thus allowing the text to be adopted extremely quickly.
The European Commission unveiled its legislative project in September (see EUROPE 12095), disappointed by the voluntary efforts of digital platforms within the EU Internet Forum (see EUROPE 12079).
The rules, as approved on Thursday, provide for hosting service providers to remove - or, in any case, disable illegal content - in less than one hour on the basis of a withdrawal order sent by an administrative or judicial authority.
It is the fact that a national authority becomes competent to deal with the actions of any entity, wherever established in the European Union, that bothers Denmark. The Danish constitution does not allow another national authority to have jurisdiction on its territory.
Once this injunction has been received, it will then be up to the service provider to assess whether the content is in contradiction with its own general terms and conditions and must be deleted.
The service provider will in theory have to comply, but may nevertheless consult the authority of their country of establishment if the injunction appears to them to be wrong. The latter could then turn to the issuing authority, pointing out the difficulties raised by the hosting service provider.
However, the competent authority of the hosting service provider’s country will not be able to veto the injunction issued, and Luxembourg has sought clarification.
Subsequent appeals against a disputed injunction will also be possible.
The text also states that once the illegal content is removed, hosting service providers will have to take proactive measures to ensure that the content does not reappear.
Cooperation between law enforcement authorities and service providers will also be improved through the establishment of contact points to facilitate the processing of referral requests and referrals.
It should be noted that if a hosting service provider fails to comply with removal orders, they may be liable to a penalty of up to a maximum of 4% of their global turnover for the previous year, according to the mandate approved by the Council.
The European Parliament has not yet adopted its negotiating position with the Council on this issue. (Original version in French by Solenn Paulic)