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The European Commission (EC) has just presented a new proposal for a regulation to take terrorist content down from the internet, in view of evidence that current measures do not appear to suffice to curb dissemination.

Currently, the Member States have an uneven patchwork of procedures to block access to online terrorist content, which constrains the efficiency and effectiveness of cooperation between authorities and service providers. Therefore, the EC has proposed a new regulation dealing with removal of this content from the internet and ensuring that requirements are uniform throughout the European Union.

Terrorist web content refers not only to material and information aimed at inciting, fomenting, and promoting terrorist offenses, but also includes material dealing with how to commit these crimes and encourage participating in these activities.

The rules the EC proposes will apply to all service providers offering their services in the European Union, regardless of their location, size and economic strength. Providers based outside the EU, which are more vulnerable to terrorist content, must appoint a legal representative in a Member State to facilitate compliance with regulations.

Removal orders are one of the most significant measures proposed: the national authorities will issue these orders requiring service providers to remove terrorist content from the web and disable access to it. Removal orders are to be implemented within one hour of receipt. The short time in which to comply with an order is due to the fact that terrorist content causes the most harm very shortly after it is posted, because it spreads very fast.

The Member States are to impose effective, proportionate, and dissuasive penalties in the event of possible non-compliance. Sizeable penalties are expected for systematic non-compliance of removal orders that may reach as much as 4% of the company’s global billing for the preceding year, depending on the specific case.

Service providers must also put in place proactive measures, including deploying automated detection tools proportionate to the risk and to the company’s resources. The national authorities in charge of issuing removal orders and recommendations can impose additional measures if they consider the measures insufficient. The new rules will require service providers to include their policies on terrorist content in their terms and conditions to augment responsibility and transparency.

A series of guarantees have been put in place to safeguard the fundamental rights that could be affected; these include the opportunity to contest the removal order and to set up complaint mechanisms for users.

We will be following developments relating to the proposal closely, particularly how online service providers will be affected, and we will post regular updates on this blog.

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Jorge Monclús

jorge.monclus@cuatrecasas.com

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