Transparency obligations for hosting service providers
1. Hosting service providers shall set out clearly in their terms and conditions their policy for addressing the dissemination of terrorist content, including, where appropriate, a meaningful explanation of the functioning of specific measures, including, where applicable, the use of automated tools.
2. A hosting service provider that has taken action to address the dissemination of terrorist content or has been required to take action pursuant to this Regulation in a given calendar year, shall make publicly available a transparency report on those actions for that year. It shall publish that report before 1 March of the following year.
3. Transparency reports shall include at least the following information:
(a)
information about the hosting service provider’s measures in relation to the identification and removal of or disabling of access to terrorist content;
(b)
information about the hosting service provider’s measures to address the reappearance online of material which has previously been removed or to which access has been disabled because it was considered to be terrorist content, in particular where automated tools have been used;
(c)
the number of items of terrorist content removed or to which access has been disabled following removal orders or specific measures, and the number of removal orders where the content has not been removed or access to which has not been disabled pursuant to the first subparagraph of Article 3(7) and the first subparagraph of Article 3(8), together with the grounds therefor;
(d)
the number and the outcome of complaints handled by the hosting service provider in accordance with Article 10;
(e)
the number and the outcome of administrative or judicial review proceedings brought by the hosting service provider;
(f)
the number of cases in which the hosting service provider was required to reinstate content or access thereto as a result of administrative or judicial review proceedings;
(g)
the number of cases in which the hosting service provider reinstated content or access thereto following a complaint by the content provider.
Competent authorities’ transparency reports
1. Competent authorities shall publish annual transparency reports on their activities under this Regulation. Those reports shall include at least the following information in relation to the given calendar year:
(a)
the number of removal orders issued under Article 3, specifying the number of removal orders subject to Article 4(1), the number of removal orders scrutinised under Article 4, and information on the implementation of those removal orders by the hosting service providers concerned, including the number of cases in which terrorist content was removed or access thereto was disabled and the number of cases in which terrorist content was not removed or access thereto was not disabled;
(b)
the number of decisions taken in accordance with Article 5(4), (6) or (7), and information on the implementation of those decisions by hosting service providers, including a description of the specific measures;
(c)
the number of cases in which removal orders and decisions taken in accordance with Article 5(4) and (6) were subject to administrative or judicial review proceedings and information on the outcome of the relevant proceedings;
(d)
the number of decisions imposing penalties pursuant to Article 18, and a description of the type of penalty imposed.
2. The annual transparency reports referred to in paragraph 1 shall not include information that may prejudice ongoing activities for the prevention, detection, investigation or prosecution of terrorist offences or interests of national security.
Remedies
1. Hosting service providers that have received a removal order issued pursuant to Article 3(1) or a decision pursuant to Article 4(4) or to Article 5(4), (6) or (7), shall have a right to an effective remedy. That right shall include the right to challenge such a removal order before the courts of the Member State of the competent authority that issued the removal order and the right to challenge the decision pursuant to Article 4(4) or to Article 5(4), (6) or (7), before the courts of the Member State of the competent authority that took the decision.
2. Content providers whose content has been removed or access to which has been disabled following a removal order shall have the right to an effective remedy. That right shall include the right to challenge a removal order issued pursuant to Article 3(1) before the courts of the Member State of the competent authority that issued the removal order and the right to challenge a decision pursuant to Article 4(4) before the courts of the Member State of the competent authority that took the decision.
3. Member States shall put in place effective procedures for exercising the rights referred to in this Article.
Complaint mechanisms
1. Each hosting service provider shall establish an effective and accessible mechanism allowing content providers where their content has been removed or access thereto has been disabled as a result of specific measures pursuant to Article 5 to submit a complaint concerning that removal or disabling, requesting the reinstatement of the content or of access thereto.
2. Each hosting service provider shall expeditiously examine all complaints that it receives through the mechanism referred to in paragraph 1 and reinstate the content or access thereto, without undue delay, where its removal or disabling of access thereto was unjustified. It shall inform the complainant of the outcome of the complaint within two weeks of the receipt thereof.
Where the complaint is rejected, the hosting service provider shall provide the complainant with the reasons for its decision.
A reinstatement of content or of access thereto shall not preclude administrative or judicial review proceedings challenging the decision of the hosting service provider or of the competent authority.
Information to content providers
1. Where a hosting service provider removes or disables access to terrorist content, it shall make available to the content provider information on such removal or disabling.
2. Upon request of the content provider, the hosting service provider shall either inform the content provider of the reasons for the removal or disabling and its rights to challenge the removal order or provide the content provider with a copy of the removal order.
3. The obligation pursuant to paragraphs 1 and 2 shall not apply where the competent authority issuing the removal order decides that it is necessary and proportionate that there be no disclosure for reasons of public security, such as the prevention, investigation, detection and prosecution of terrorist offences, for as long as necessary, but not exceeding six weeks from that decision. In such a case, the hosting service provider shall not disclose any information on the removal or disabling of access to terrorist content.
That competent authority may extend that period by a further six weeks, where such non-disclosure continues to be justified.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
