49 Amendments of Marietje SCHAAKE related to 2018/0331(COD)
Amendment 70 #
Proposal for a regulation
Recital 5
Recital 5
(5) The application of this Regulation should not affect the application of Article 14 and 15 of Directive 2000/31/EC8 . In particular, any measures taken by the hosting service provider in compliance with this Regulation, including any proactiveadditional measures, should not in themselves lead to that service provider losing the benefit of the liability exemption provided for in that provision. This Regulation leaves unaffected the powers of national authorities and courts to establish liability of hosting service providers in specific cases where the conditions under Article 14 of Directive 2000/31/EC for liability exemption are not met. _________________ 8 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1).
Amendment 85 #
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. , in the context of this Regulation, the possibility for users to contest the removal of content resulting from measures taken by the hosting service provider as foreseen in this Regulation and informed of effective means of remedies, both internal and before the court of the Member State of residence. It also includes the ability 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, the court of the Member State where the hosting service provider is established or represented, or the court of the Member State of residence for the content provider.
Amendment 100 #
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 drawingbased 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 harmfuillegal terrorist propagandacontent online, the definition should capture material and information that incites, encourages or advocates the commission or contribution to terrorist offences, provides instructionstraining for the commission of such offences or promotes the participation in activities ofrecruits for a terrorist group. Such information includes in particular text, images, sound recordings and videos. When assessing whether content constitutes illegal terrorist content within the meaning of this Regulation, competent authorities as well as hosting service providers should take into account factors such asmust base their assessment on factors such as the notion of intention, the nature and wording of the statements, the context in which the statements were made and their potential to lead todemonstrable risk of provoking actions with 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 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 111 #
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 whichose main business activity consists in the storage information provided by a recipient of the service at his or her request and in making the information stored directly available to third parties, irrespective of whether this activity is of a mere technical, automatic and passive naturee public. 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 directly available to the public third parties and websites where users can make comments or post reviews. 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 terroristhosting illegal 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 120 #
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 legal assessment by the competent authorities, should be harmonised. Member States should remain free as to the choice ofdesignate the competent authorities allowimong them to designateir independent administrative, law enforcement or and judicial authorities with that task. Given the speed at which illegal terrorist content is disseminated across online services, this provision imposes obligations on hosting service providers to ensure that illegal terrorist content identified in the removal order is removed or access to it is disabled within one hour from receiving the removal orderout undue delay. 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 based on the definition of illegal terrorist content, the implementation of effective redress mechanisms and generally taking as a basis of their decision any other applicable provisions from this Regulation.
Amendment 140 #
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 onHosting service providers may, where appropriate, take voluntary additional measures to protect their services against the dissemination of terrorist content. The measures should be effective and proportionate, taking into account 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, hosting service providers should determine what appropriate, effective and proportionate proactive measure should be put in place, paying particular regard to the fundamental rights of the users, and the fundamental importance of the freedom of expression and information in an open and democratic society. 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 146 #
Proposal for a regulation
Recital 17
Recital 17
(17) When putting in place proactiveadditional measures, hosting service providers should ensure that users’ right to freedom of expression and information - including to freely receive and impart information - is preserved. In addition to any requirement laid down in the law, including the legislation on protection of personal data, hosting service providers should act with due diligence and implement safeguards, including notably human oversight and verifications, where appropriate, to avoid any unintended and erroneous decision leading to removal of content that is not illegal terrorist content. This is of particular relevance when hosting service providers use automated means to detect terrorist content. Any decision to use automated means, whether taken by the hosting service provider itself or pursuant to a request by the competent authority, should be assessed with regard to the reliability of the underlying technology and the ensuing impact on fundamental rights. Private databases that contain hash fingerprints of audio and video of terrorist content, as defined by the Community Guidelines or the Terms of Services of these companies should be accessible to independent third parties in order to avoid any unintended and erroneous decision leading to removal of content that is not illegal terrorist content.
Amendment 163 #
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. 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 reasonsThe measures taken by the hosting service provider should not lead to the imposition of a general monitoring, as provided in Article 15(1) of Directive 2000/31/EC. 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 175 #
Proposal for a regulation
Recital 21
Recital 21
(21) The obligation to preserve the content for proceedings of independent administrative or judicial review is necessary and justified in view of ensuring the effective measures of redress for the content provider whose content was removed or access to it disabled as well as for ensuring the reinstatement of that content as it was prior to its removal depending on the outcome of the review procedure. The obligation to preserve content for investigative and prosecutorial purposes is justified and necessary in view of the value this material could bring for the purpose of disrupting or preventing terrorist activity. Where companies remove material or disable access to it, in particular through their own proactive measures, and do not inform the relevantindependent administrative or judicial authority because they assess that it does not fall in the scope of Article 13(4) of this Regulation, law enforcement may be unaware of the existence of the content. Therefore, the preservation of content for purposes of prevention, detection, investigation and prosecution of terrorist offences is also justified. For these purposes, the required preservation of data is limited to data that is likely to have a link with terrorist offences, and can therefore contribute to prosecuting terrorist offences or to preventing serious risks to public security.
Amendment 185 #
Proposal for a regulation
Recital 24
Recital 24
(24) Transparency of hosting service providers' policies in relation to illegal terrorist content is essential to enhance their accountability towards their users and to reinforce trust of citizens in the Digital Single Markethosting service providers’ and competent authorities’ in the Union. Hosting service providers should publish annual transparency reports containing detailed and meaningful information about action taken in relation to the detection, identification and removal of illegal terrorist content and the potential legal content restrictions. Likewise, competent authorities should publish annual transparency reports containing detailed and meaningful information about the number of legal orders issued, the number of removals, the number of identified and detected illegal terrorist content leading to investigation and prosecution of terrorist offences and the number of restrictions on legal content.
Amendment 240 #
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, 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 hourout undue delay 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. 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 illegal terrorist content.
Amendment 254 #
Proposal for a regulation
Article 1 – paragraph 1 – introductory part
Article 1 – paragraph 1 – introductory part
1. This Regulation lays down uniformtargeted rules to preventaddress the misuse of hosting services by third parties for the dissemination of illegal terrorist content online. It lays down in particular:
Amendment 261 #
Proposal for a regulation
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
(a) rules on reasonable and proportionate duties of care to be applied by hosting service providers in order to preventwhose services are particularly exposed to illegal terrorist content, in order to minimise the dissemination of terrorist content through their services and ensure, where necessary, its swift removal;
Amendment 266 #
Proposal for a regulation
Article 1 – paragraph 1 – point b
Article 1 – paragraph 1 – point b
(b) a set of measures to be put in place by Member States to identify illegal terrorist content, to enable its swiftexpeditious removal by hosting service providers in accordance with Union law providing suitable safeguards for fundamental rights and to facilitate cooperation with the competent judicial or administrative authorities in other Member States, hosting service providers and where appropriate relevant Union bodies.
Amendment 268 #
Proposal for a regulation
Article 1 – paragraph 1 – point b
Article 1 – paragraph 1 – point b
(b) a set of measures to be put in place by Member States to identify illegal terrorist content, to enable its swift removal by hosting service providers and to facilitate cooperation with the competent judicial and independent administrative authorities in other Member States, hosting service providers and where appropriate relevant Union bodies.
Amendment 277 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2 a. Content disseminated for educational, journalistic, artistic or research purposes or awareness raising activities against terrorism shall be excluded.
Amendment 286 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'h‘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 informwhose main business activity consists in storing and making publicly available information provided by and at the request of the content provider. For the purpose of this Regulation, micro, small, and medium sized enterprises, electronic communications stored available to third parties;ervices, online marketplaces and infrastructure-as-a- service providers are not considered hosting service providers.
Amendment 307 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – introductory part
Article 2 – paragraph 1 – point 5 – introductory part
(5) '‘illegal terrorist content' me’ refers to ansy one or more of the following information:ffence defined in articles 5 to 7 of Directive 2017/541 on combating terrorism;
Amendment 316 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point a
Article 2 – paragraph 1 – point 5 – point a
Amendment 324 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point b
Article 2 – paragraph 1 – point 5 – point b
Amendment 329 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point c
Article 2 – paragraph 1 – point 5 – point c
Amendment 334 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point d
Article 2 – paragraph 1 – point 5 – point d
Amendment 345 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘dissemination of illegal terrorist content’ means making illegal terrorist content available to third partiese public on the hosting service providers’ services;
Amendment 369 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Hosting service providers that have been in receipt of a substantial number of uncontested removal orders pursuant to Article 4, shall take appropriate, reasonable and proportionate actions in accordance with this Regulation, against theto address the public dissemination of terrorist content and to protect users from illegal terrorist content. In doing so, they shall act in a diligent, proportionate and non- discriminatory manner, and with due regard to the fundamental rights of the users and take into account the fundamental importance of the freedom of expression and information in an open and democratic societyrespect the fundamental rights and freedoms of the recipients of their services as enshrined in the EU Charter of Fundamental Rights.
Amendment 373 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 395 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Hosting service providers shall remove terrorist content or disable access to it within one hour fromout undue delay upon receipt of the removal order.
Amendment 403 #
Proposal for a regulation
Article 4 – paragraph 3 – point b
Article 4 – paragraph 3 – point b
(b) a statement of reasons explaining why the content is considered terrorist content, at least, by reference to the categories of illegal terrorist content listed in Article 2(5);
Amendment 404 #
Proposal for a regulation
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) an exact Uniform Resource Locator (URL) and, where necessary, additional information enabling the identification of the content referred;
Amendment 409 #
Proposal for a regulation
Article 4 – paragraph 3 – point g
Article 4 – paragraph 3 – point g
(g) where relevantnecessary and appropriate, the decision not to disclose information about the removal of terrorist content or the disabling of access to it referred to in Article 11.
Amendment 428 #
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, explaining the reasons, using the template set out in Annex III. TParagraph 2 shall apply as soon as the dreadline set out in paragraph 2 shall apply as soon as the reasons invoked are no longer presentsons invoked are no longer present, except when the hosting service provider cannot comply with the removal order because it would have disproportionate effects on the rights of its users such as protection of private life, data protection, secrecy of correspondence, freedom of expression and information in an open and democratic society.
Amendment 435 #
Proposal for a regulation
Article 4 – paragraph 8
Article 4 – paragraph 8
8. If the hosting service provider cannot comply with the removal order because the removal order contains manifest errors, is insufficiently substantiated or does not contain sufficient information to execute the order, it shall inform the competent authority without undue delay, asking for the necessary clarification, using the template set out in Annex III. The deadline set out in paragraph 2 shall apply as soon as the clarification is provided.
Amendment 436 #
Proposal for a regulation
Article 4 – paragraph 9
Article 4 – paragraph 9
9. The competent authority which issued the removal order shall inform the competent authority which oversees the implementation of proactive measures, referred to in Article 17(1)(c) when the removal order becomes final. A removal order becomes final where it has not been appealed within the deadline according to the applicable national law or where it has been confirmed following an appeal.
Amendment 445 #
Proposal for a regulation
Article 5
Article 5
Amendment 458 #
Amendment 461 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
Amendment 469 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 470 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1
Article 6 – paragraph 2 – subparagraph 1
Amendment 479 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1 – point a
Article 6 – paragraph 2 – subparagraph 1 – point a
Amendment 486 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1 – point b
Article 6 – paragraph 2 – subparagraph 1 – point b
Amendment 490 #
Amendment 493 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 3
Article 6 – paragraph 2 – subparagraph 3
Amendment 499 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 506 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
Amendment 515 #
Proposal for a regulation
Article 6 – paragraph 5
Article 6 – paragraph 5
Amendment 554 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Hosting service providers and the authorities competent to issue removal orders shall publish annual transparency reports on action taken against the dissemination of illegal terrorist content.
Amendment 570 #
Proposal for a regulation
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. Hosting service providers that make use of private databases that contain hash fingerprints of audio and video of terrorist content, as defined by the Community Guidelines or the Terms of Services of these companies, shall give access to this database to independent third parties in order to avoid any unintended and erroneous decision leading to removal of content that is not illegal terrorist content.
Amendment 580 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Safeguards shall consist, in particular, of human oversight and verifications where appropriate and,of the illegality of the content as well as the balance of the decision to remove or deny access to content with the respect for fundamental rights and the rule of law. Human oversight shall be required in any event, where a detailed assessment of the relevant context is required in order to determine whether or not the content is to be considered illegal terrorist content.
Amendment 591 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Hosting service providers shall establish effective and accessible mechanisms allowing content providers whose content has been removed or access to it disabled as a result of a referral pursuant to Article 5 or of proactivedditional measures pursuant to Article 6, to submit a complaint against the action of the hosting service provider requesting reinstatement of the content.
Amendment 664 #
Proposal for a regulation
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. Each Member State shall designate the authority ora judicial or an independent administrative authoritiesy competent to