37 Amendments of Monika HOHLMEIER related to 2018/0331(COD)
Amendment 87 #
Proposal for a regulation
Recital 8
Recital 8
(8) The right to an effective remedy is enshrined in Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union. Each natural or legal person has the right to an effective judicial remedy before the competent national court against any of the measures taken pursuant to this Regulation, which can adversely affect the rights of that person. The right includes, in particular the possibility for hosting service providers and content providers to effectively contest the removal orders before the court of the Member State whose authorities issued the removal order. Moreover, hosting service providers should have the right to contest a decision imposing proactive measures or penalties before the court of the Member State whose authorities have adopted the decision.
Amendment 93 #
Proposal for a regulation
Recital 9
Recital 9
(9) In order to provide clarity about the actions that both hosting service providers and competent authorities should take to prevent the dissemination of terrorist content online, this Regulation should establish a definition of terrorist content for preventative purposes drawing on the definition of terrorist offences under Directive (EU) 2017/541 of the European Parliament and of the Council9 . Given the need to address the most harmful terrorist propaganda online, the definition should capture material and information that incites, encourages or advocates the commission or contribution to terrorist offences, provides instructions for the commission of such offences, guidance on methods or techniques on the making or use of explosives, firearms or other weapons or noxious substances as well as CBRN substances, or promotes the participation in activities of a terrorist group. Such information includes in particular text, images, sound recordings and videos. When assessing whether content constitutes terrorist content within the meaning of this Regulation, competent authorities as well as hosting service providers should take into account factors such as the nature and wording of the statements, the context in which the statements were made and their potential to lead to harmful consequences, thereby affecting the security and safety of persons. The fact that the material was produced by, is attributable to or disseminated on behalf of an EU-listed terrorist organisation or person constitutes an important factor in the assessment. Content disseminated for educational, journalistic, counter-narrative or research purposes should be adequately protected. Furthermore, the expression of radical, polemic or controversial views in the public debate on sensitive political questions should not be considered terrorist content. _________________ 9Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6).
Amendment 103 #
Proposal for a regulation
Recital 10
Recital 10
(10) In order to cover those online hosting services where terrorist content is disseminated, this Regulation should apply to information society services which store information provided by a recipient of the service at his or her request and in making the information and material stored available to third partiese public, irrespective of whether this activity is of a mere technical, automatic and passive nature. By way of example such providers of information society services include social media platforms, video streaming services, video, image and audio sharing services, file sharing and other cloud services, to the extent they make the information available to third parties and webse public and websites where users can make comments or post reviews. Cloud infrastructure services which comprise the provision of on demand physical or virtual resources that provide computing and storage infrastructure capabilities where users can make comments or post reviewson which the service provider has no contractual rights as to what content is stored or how it is processed or made publicly available by its customers or by the end-users of such customers, and where the service provider has no technical capability to remove specific content stored by their customers or the end-users of their customers, should not be considered to fall within the scope of this Regulation. The Regulation should also apply to hosting service providers established outside the Union but offering services within the Union, since a significant proportion of hosting service providers exposed to terrorist content on their services are established in third countries. This should ensure that all companies operating in the Digital Single Market comply with the same requirements, irrespective of their country of establishment. The determination as to whether a service provider offers services in the Union requires an assessment whether the service provider enables legal or natural persons in one or more Member States to use its services. However, the mere accessibility of a service provider’s website or of an email address and of other contact details in one or more Member States taken in isolation should not be a sufficient condition for the application of this Regulation.
Amendment 123 #
Proposal for a regulation
Recital 13
Recital 13
(13) The procedure and obligations resulting from legal orders requesting hosting service providers to remove terrorist content or disable access to it, following an assessment by the competent authorities, should be harmonised. Member States should remain free as to the choice of the competent authorities allowing them to designate administrative, law enforcement or judicial authorities with that task. Given the speed at which terrorist content is disseminated across online services, this provision imposes obligations on hosting service providers to ensure that terrorist content identified in the removal order is removed or access to it is disabled within one hour from receiving the removal order. Respecting this one hour delay is crucial to avoid a widespread dissemination of such content. It is for the hosting service providers to decide whether to remove the content in question or disable access to the content for users in the Union.
Amendment 129 #
Proposal for a regulation
Recital 13 a (new)
Recital 13 a (new)
(13 a) Where a hosting service provider has been unable to succeed in removing or disabling access to the relevant content within one hour, the hosting service providers should take all the necessary measures to execute the removal order without undue delay. The hosting service provider should report to the issuing authority on the reasons which made it impossible to execute the order. In case of delays, the nature and size of the hosting service providers should be taken into account, particularly in the case of micro enterprises or small-sized enterprises within the meaning of the Commission recommendation 2003/361/EC1a. _________________ 1aCommission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises, OJ L 124, 20.5.2003, p. 36.
Amendment 137 #
Proposal for a regulation
Recital 15
Recital 15
(15) Referrals by the competent authorities or Europol constitute an effective and swift means of making hosting service providers aware of specific content on their services. This mechanism of alerting hosting service providers to information that may be considered terrorist content, for the provider’s voluntary consideration of the compatibility its own terms and conditions, should remain available and continue to be developed, in addition to removal orders. It is important that hosting service providers assess such referrals as a matter of priority and provide swift feedback about action taken. The ultimate decision about whether or not to remove the content because it is not compatible with their terms and conditions remains with the hosting service provider. In implementing this Regulation related to referrals, Europol’s mandate as laid down in Regulation (EU) 2016/79413 remains unaffected. _________________ 13Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).
Amendment 144 #
Proposal for a regulation
Recital 16
Recital 16
(16) Given the scale and speed necessary for effectively identifying and removing terrorist content, proportionate proactive measures, including by using automated means in certain cases, are an essential element in tackling terrorist content online. With a view to reducing the accessibility of terrorist content on their services, hosting service providers should assess whether it is appropriate to take proactive measures depending on the risks and level of exposure to terrorist content as well as to the effects on the rights of third parties and the public interest of information. Consequently, based on cooperation and exchange of best practice, hosting service providers should determine what appropriate, effective and proportionate proactive measure should be put in place. This requirement should not imply a general monitoring obligation. In the context of this assessment, the absence of removal orders and referrals addressed to a hosting provider, is an indication of a low level of exposure to terrorist content.
Amendment 160 #
Proposal for a regulation
Recital 18
Recital 18
(18) In order to ensure that hosting service providers exposed to terrorist content take appropriate measures to prevent the misuse of their services, the competent authorities should request hosting service providers having received a removal order, which has become final, to report on the proactive measures taken. These could consist of measures to prevent the re-upload of terrorist content, removed or access to it disabled as a result of a removal order or referrals they received, checking against publicly or privately-held tools containing known terrorist content. They may also employ the use of reliable technical tools to identify new terrorist content, either using those available on the market or those developed by the hosting service provider. The service provider should report on the specific proactive measures in place in order to allow the competent authority to judge whether the measures are effective and proportionate and whether, if automated means are used, the hosting service provider has the necessary abilities for human oversight and verification. In assessing the effectiveness and proportionality of the measures, competent authorities should take into account relevant parameters including the number of removal orders and referrals issued to the provider, their size and economic capacity and the impact of its service in disseminating terrorist content (for example, taking into account the number of users in the Union).
Amendment 169 #
Proposal for a regulation
Recital 19
Recital 19
(19) Following the request, the competent authority should enter into a dialogue with the hosting service provider about the necessary proactive measures to be put in place. If necessary, the competent authority should impose the adoption of appropriate, effective and proportionate proactive measures where it considers that the measures taken are insufficient to meet the risks taking into consideration the economic and technical capacity of the platform. A decision to impose such specific proactive measures should not, in principle, lead to the imposition of a general obligation to monitor, as provided in Article 15(1) of Directive 2000/31/EC. Considering the particularly grave risks associated with the dissemination of terrorist content, the decisions adopted by the competent authorities on the basis of this Regulation could derogate from the approach established in Article 15(1) of Directive 2000/31/EC, as regards certain specific, targeted measures, the adoption of which is necessary for overriding public security reasons. Before adopting such decisions, the competent authority should strike a fair balance between the public interest objectives and the fundamental rights involved, in particular, the freedom of expression and information and the freedom to conduct a business, and provide appropriate justification.
Amendment 186 #
Proposal for a regulation
Recital 24
Recital 24
(24) Transparency of hosting service providers' policies in relation to terrorist content is essential to enhance their accountability towards their users and to reinforce trust of citizens in the Digital Single Market. Hosting service providers should publish annual transparency reports containing meaningful information about action taken in relation to the detection, identification and removal of terrorist content, and promote exchange of best practice to efficiently tackle terrorist content.
Amendment 200 #
Proposal for a regulation
Recital 27
Recital 27
(27) In order to avoid duplication and possible interferences with investigations, the competent authorities should inform, coordinate and cooperate with each other and where appropriate with Europol whenbefore issuing removal orders or when sending referrals to hosting service providers. When deciding upon issuing a removal order, the competent authority should give due consideration to any notification of an interference with an investigative interests ("de-confliction"). Where a competent authority is informed about an existing removal order issued by the competent authority of another Member State, it should refrain from issuing a duplicate order. In implementing the provisions of this Regulation, Europol could provide support in line with its current mandate and existing legal framework.
Amendment 213 #
Proposal for a regulation
Recital 30
Recital 30
(30) To facilitate the swift exchanges between competent authorities as well as with hosting service providers, and to avoid duplication of effort, Member States may makeare encouraged to use of tools developed by Europol, such as the current Internet Referral Management application (IRMa) or successor tools. Europol should be provided with the necessary financial and human resources to develop these tools to support Member States in the implementation of this Regulation, and to improve them with a view to enhance the standardisation of referrals and strengthen the coordination of removal orders at EU level while continuing to provide expert support and advice to both the Member States and the hosting service providers.
Amendment 219 #
Proposal for a regulation
Recital 33
Recital 33
(33) Both hosting service providers and Member States should establish points of contact to facilitate the swift handling of removal orders and referrals. In contrast to the legal representative, the point of contact serves operational purposes. The hosting service provider’s point of contact should consist of any dedicated means allowing for the electronic submission of removal orders and referrals and of technical and personal means allowing for the swift processing thereof. The point of contact for the hosting service provider does not have to be located in the Union and the hosting service provider is free to nominate an existing point of contact, provided that this point of contact is able to fulfil the functions provided for in this Regulation. With a view to ensure that terrorist content is removed or access to it is disabled within one hour from the receipt of a removal order, hosting service providers exposed to terrorist content should ensure that the point of contact is reachable 24/7. The information on the point of contact should include information about the language in which the point of contact can be addressed. In order to facilitate the communication between the hosting service providers and the competent authorities, hosting service providers are encouraged to allow for communication in one of the official languages of the Union in which their terms and conditions are available. Hosting service providers should establish this contact point as soon as they become aware of such content, at the latest without undue delay after they have received a first removal order.
Amendment 234 #
Proposal for a regulation
Recital 37 a (new)
Recital 37 a (new)
(37 a) Member States should communicate the competent authorities designated under this Regulation to the Commission, which should publish online a compilation of the competent authorities per Member State. The online registry should be easily accessible to facilitate the swift verification of the authenticity of removal orders by the hosting service providers.
Amendment 237 #
Proposal for a regulation
Recital 38
Recital 38
(38) Penalties are necessary to ensure the effective implementation by hosting service providers of the obligations pursuant to this Regulation. Member States should adopt rules on penalties, which can be of an administrative or criminal nature including, where appropriate, fining guidelines. Particularly severe penalties shall be ascertained in the event that the hosting service provider systematically fails to remove terrorist content or disable access to it within one hour from receipt of a removal order. Non-compliance in individual cases could be sanctioned while respecting the principles of ne bis in idem and of proportionality and ensuring that such sanctions take account of systematic failure. When determining whether a penalty should apply, Member States should take into consideration the reports made by hosting service providers when they have been unable to execute a removal order on time. The Member States should take into consideration the economic and technical capacity of the hosting service providers. In order to ensure legal certainty, the regulation should set out to what extent the relevant obligations can be subject to penalties. Penalties for non-compliance with Article 6 should only be adopted in relation to obligations arising from a request to report pursuant to Article 6(2) or a decision imposing additional proactive measures pursuant to Article 6(4). When determining whether or not financial penalties should be imposed, due account should be taken of the financial resources of the provider. Member States shall ensure that penalties do not encourage the removal of content which is not terrorist content.
Amendment 292 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'hosting service provider' means a provider of information society services consisting in the storage of information provided by and at the request of the content provider and in making the information stored available to third partiese public;
Amendment 301 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) 'terrorist offences' means offencesintentional acts listed as defined in Article 3(1) of Directive (EU) 2017/541 when and insofar as committed with a specific terrorist aim as defined in Article 3(2) of that Directive; ;
Amendment 308 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – introductory part
Article 2 – paragraph 1 – point 5 – introductory part
(5) 'terrorist content' means material, including messages or images, constituting a public provocation to commit a terrorist offence, comprising one or more of the following information:
Amendment 318 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point a
Article 2 – paragraph 1 – point 5 – point a
(a) inciting or advocating, including by glorifying, the commission of terrorist offences, thereby causing a danger that such actsoffences may be committed;
Amendment 326 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point b
Article 2 – paragraph 1 – point 5 – point b
(b) encouraging thesoliciting persons or a group of persons to commit or to contributione to terrorist offences;
Amendment 332 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point c
Article 2 – paragraph 1 – point 5 – point c
(c) promoting the activities of a terrorist group, in particular by encouraging thesoliciting persons or a group of persons to participatione in or support tohe criminal activities of a terrorist group within the meaning of Article 2(3) of Directive (EU) 2017/541;
Amendment 339 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point d
Article 2 – paragraph 1 – point 5 – point d
(d) instructingproviding guidance on methods or techniques, including on the making or use of explosives, firearms or other weapons or noxious or hazardous substances as well as CBRN substances, for the purpose of committing terrorist offences.
Amendment 347 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘dissemination of terrorist content’ means making terrorist content available to third partiese public on the hosting service providers’ services;
Amendment 431 #
Proposal for a regulation
Article 4 – paragraph 7
Article 4 – paragraph 7
7. If the hosting service provider cannot comply with the removal order because of force majeure or of de facto impossibility not attributable to the hosting service provider, it shall inform, without undue delay, the competent authority, explainingreport on the reasons, using the template set out in Annex III. The deadline set out in paragraph 2 shall apply as soon as the reasons invoked are no longer present.
Amendment 466 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Hosting service providers shall, where appropriateproportionate to the risk and level of exposure to terrorist content, take proactive measures to protect their services against the dissemination of terrorist content. The measures shall be effective and proportionate, taking into account the risk and level of exposure to terrorist content, the fundamental rights of the users, and the fundamental importance of the freedom of expression and information in an open and democratic society.
Amendment 511 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Where no agreement can be reached within the three months from the request pursuant to paragraph 3, the competent authority referred to in Article 17(1)(c) may issue a decision imposing specific additional necessary and proportionate proactive measures. The decision shall take into account, in particular, the size and economic capacity of the hosting service provider and the effect of such measures on the fundamental rights of the users and the fundamental importance of the freedom of expression and information. Such a decision shall be sent to the main establishment of the hosting service provider or to the legal representative designated by the service provider. The hosting service provider shall regularly report on the implementation of such measures as specified by the competent authority referred to in Article 17(1)(c).
Amendment 517 #
Proposal for a regulation
Article 6 – paragraph 5
Article 6 – paragraph 5
5. A hosting service provider may, at any time, request the competent authority referred to in Article 17(1)(c) a review and, where appropriate, to revoke a request or decision pursuant to paragraphs 2, 3, and 4 respectively. The competent authority shall provide a reasoned decision within a reasonable period of time after receiving the request by the hosting service provider. A hosting service provider shall have the right to contest a decision imposing proactive measures before the court of the Member State whose competent authority has adopted this decision.
Amendment 616 #
Proposal for a regulation
Article 13 – title
Article 13 – title
13 Cooperation between hosting service providers, competent authorities and where appropriate relevacompetent Union bodies
Amendment 619 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Competent authorities in Member States shall inform, coordinate and cooperate with each other and, where appropriate, with relevacompetent Union bodies such as Europol with regard to removal orders and referrals to avoid duplication, enhance coordination and avoid interference with investigations in different Member States.
Amendment 626 #
Proposal for a regulation
Article 13 – paragraph 3 – introductory part
Article 13 – paragraph 3 – introductory part
3. Member States and hosting service providers may choose to make use of dedicated tools, including, where appropriate, those established by relevacompetent Union bodies such as Europol, to facilitate in particular:
Amendment 637 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Hosting service providers exposed to terrorist content and receiving removal orders shall establish a point of contact allowing for the receipt of removal orders and referrals by electronic means and ensure their swift processing pursuant to Articles 4 and 5. They shall ensure that this information is made publicly available.
Amendment 678 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
2. By [six months after the entry into force of this Regulation] at the latest Member States shall notify the Commission of the competent authorities referred to in paragraph 1. The Commission shall set up an online register listing all these competent authorities. The Commission shall publish the notification and any modifications of it in the Official Journal of the European Union.
Amendment 708 #
Proposal for a regulation
Article 18 – paragraph 3 – point e a (new)
Article 18 – paragraph 3 – point e a (new)
(ea) reports sent by hosting service providers when they have been unable to execute a removal order on time.
Amendment 711 #
Proposal for a regulation
Article 18 – paragraph 3 – point e b (new)
Article 18 – paragraph 3 – point e b (new)
(eb) the economic and technical capacity of the hosting service providers.
Amendment 714 #
Proposal for a regulation
Article 18 – paragraph 4 a (new)
Article 18 – paragraph 4 a (new)
4a. Members States shall take into consideration the specificities of micro or small enterprises within the meaning of the Commission recommendation 2003/361/EC, when determining penalties.
Amendment 726 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
No sooner than [three years from the date of application of this Regulation], the Commission shall carry out an evaluation of this Regulation and submit a report to the European Parliament and to the Council on the application of this Regulation including the functioning of the effectiveness of the safeguard mechanisms. In the context of this evaluation, the Commission shall also report on the necessity, the feasibility and the effectiveness of creating a European Platform on Terrorist Content Online, which would allow all Member States to use one secure communication channel to send referrals and removal orders for terrorist content to hosting service providers. Where appropriate, the report shall be accompanied by legislative proposals. Member States shall provide the Commission with the information necessary for the preparation of the report.
Amendment 752 #
Proposal for a regulation
Annex III – section B – point i – paragraph 3 – indent 1 (new)
Annex III – section B – point i – paragraph 3 – indent 1 (new)
- Impossibility for the hosting service provider to execute the order for technical or practical reasons