Ireland ‘failing to comply’ with EU regulation on spread of terrorist content

Ireland has been criticised by the European Commission over its failure to ensure that online service providers remove terrorist content after receiving a removal order from member states’ authorities.

Such content is expected to be removed within one hour by host service providers, which must take action when their platforms are exposed to terrorist content.

The EU Terrorist Content Online Regulation (TCOR) allows orders to be issued requiring service providers to remove terrorist content within this very short time frame. Under the regulation each member state is required to designate up to four national competent authorities.

On Monday the commission issued a warning that it believes five countries - Ireland, Estonia, Luxembourg, Poland and Portugal - have failed to comply with one or more of these obligations under the EU regulation on the dissemination of terrorist content online.

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The regulation centres around the requirement to designate an authority or authorities responsible for issuing removal orders and notifying the commission of those authorities; to name a public contact point and to lay down the rules and measures on penalties in case of non-compliance with legal obligations.

The commission’s findings are contained in a reasoned opinion, issued to the five member states, which now have two months to respond and take the necessary measures. Otherwise, the commission may decide to refer the cases to the Court of Justice of the European Union (CJEU).

The regulation, which entered into force on June 7th, 2022, provides for penalties for breaches and includes safeguards to protect fundamental rights.

A European Commission spokesperson said the commission does not comment on ongoing infringement procedures.

“When a new stage in the infringement procedure has been reached, the commission will communicate it publicly through official channels,” the spokesperson explained.

On Tuesday Minister for Justice Helen McEntee and Minister of State for Justice James Browne announced they had secured Government approval for the drafting of new legislation which will permit gardaí to swiftly access criminal evidence in digital form.

The Government has approved the general scheme of the Criminal Justice (Protection, Preservation and Access to Data on Information Systems) Bill 2024, which will allow law enforcement authorities such as gardaí to request the preservation and production of data being held on IT systems controlled by internet service providers in order to investigate and tackle crime.

The general scheme is now being referred to the joint Oireachtas Committee on Justice for pre-legislative scrutiny.

Making the point that “preservation and production orders” provide a modern law enforcement tool more suitable for obtaining digital evidence than traditional search and seizure measures, Ms McEntee said: “[The Bill] will mark a significant step forward in tackling crime that operates in the online space. Traditional search-and-seize legislation was drafted to target physical spaces and objects. It predates the technological evolution seen in recent years where much of human, and in turn criminal, activity is taking place in the virtual space and with the footprints of this activity accessible often only on private cloud infrastructures.

“The measures in the Bill provide comprehensive, modern tools for law enforcement agencies to access online evidence easily and efficiently while ensuring individuals’ privacy rights are respected. The Bill will also be a key element of the Government’s vision for a modern, cohesive and well-resourced regulatory system for the digital economy.”

[ Social media and video sharing sites to come under strict safety rules enforced by Irish regulator ]

The proposed legislation will give effect to a range of measures contained in international agreements Ireland is party to, all relating to tackling crime with an online element. These include the Council of Europe’s Budapest Convention on Cybercrime, the EU E-evidence Regulation and the EU Terrorist Content Online Regulation.

A Department of Justice spokesperson pointed out that under the regulation, each member state is required to designate up to four national competent authorities.

“Two of these are already in place. An Garda Síochána was designated as the Irish competent authority to issue removal orders, and Coimisiún na Meán as the Irish competent authority to oversee specific remedial measures under the EU regulation,” the spokesperson said.

The Government previously approved the designation of Coimisiún na Meán, Ireland’s media regulator, as the competent authority for imposing penalties, and this designation will be made once primary legislation is passed enabling it to take on this role. The Government approved the general scheme of this legislation on Tuesday.

“This designation will also satisfy the requirement to lay down rules on penalties, as these will be governed by the provisions of the Online Safety and Media Regulation Act,” the Department of Justice spokesperson continued.

“Finally, a competent authority must be designated for scrutiny of cross-border removal orders. This matter is under active consideration within the department, including through consideration of and contacts with counterpart bodies in other member states.”

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