Countering extremist ideologies: What are the synergies between the EU’s internal and external action?

A long-standing objective promoted both within and outside the EU, but with no clear meaning

The objective of combatting extremist ideologies inside and outside the EU is not new if one takes into account the many explicit references to the ambition to eradicate terrorist propaganda from the early 2000s. The aspiration to counter the spread of extremist/terrorist ideology inside and outside the EU as a way to contribute to the EU’s counter-terrorism policy gained momentum in the EU’s policy documents after the tragic terrorist attacks of 9/11. It received renewed attention after the Madrid (2004) and the London (2005) terrorist attacks when the fight against radicalisation became a key dimension of the prevention of terrorism. Countering the spread of terrorist propaganda is one of the vital elements of the ‘prevent’ strand of the EU Counter-Terrorism Strategy adopted in 2005 ¹¹ and has been a continuing priority of the EU’s work to combat radicalisation. ¹² Although concerns about the spread of extremist ideologies have changed considerably, this objective remains high up the EU counter-terrorism agenda ¹³ and is now firmly anchored in the broader framework of ‘preventing and countering violent extremism’ (P/CVE).

Initially, the focus was more specifically on ‘[t]he propagation of a particular extremist worldview’ which brings individuals to consider and justify violence. The explicit reference to ‘propaganda which distorts conflicts around the world as a supposed proof of a clash between the West and Islam’ as well as on ‘extremists inspired by Al-Qa’ida’ clearly indicates that religious extremism promoted by terrorist groups outside the EU was perceived as the main threat. ¹⁴ This is despite the EU’s commitment to combatting all forms of terrorism, regardless of the ideologies underlying it (for example, whether nationalist, anarchist, separatist, far left or extreme right). ¹⁵ To prevent religious terrorist propaganda from attracting new recruits, several guiding objectives relating to a wide range of topics were first promoted. Some of them seemed to have an external reach, such as empowering moderate voices by engaging with Muslim organisations and faith groups, encouraging the emergence of European Imams or enhancing efforts to change the perceptions of European and western policies, particularly among Muslim communities. These broad priorities - too vague to form a clear policy - are in addition to objectives with a more internal scope, such as the need to establish an appropriate legal framework to prevent individuals from inciting and legitimising violence, particularly given the increasing use of the Internet as a recruitment tool. These priorities are still relevant today even if the focus has gradually shifted to other types of ideologies while the online dimension is becoming increasingly important. ¹⁶

Given the transnational dimension of the spread of extremist ideologies, it is widely recognised that efforts must continue beyond the EU’s borders and the phenomenon of the ‘foreign terrorist fighters’ has greatly contributed to strengthening the internal/external nexus. The objective of countering extremist ideologies/terrorist propaganda has gradually been integrated into the priorities of EU external action vis-à-vis neighbouring countries ¹⁷ and beyond. For example, the EU Counter-Terrorism strategy for Syria and Iraq ¹⁸ , which was adopted in the context of the threat posed by the unprecedented flow of foreign terrorist fighters, includes several priorities aimed at countering the ideological influence of Da’esh. These include objectives such as the development of a joint internal and external security approach to deal with the evolution of Da’esh communication and propaganda methodologies; supporting communication campaigns aimed at discrediting Da’esh ideology or using internally developed counter-narrative resources to externally challenge terrorist narratives and their claimed ideology. The revised EU regional strategy for Syria and Iraq as well as the Da’esh threat ¹⁹ also contains references to similar objectives in line with the priorities set out at the Foreign Affairs Council of 9 February 2015. ²⁰ In addition to tackling Da’esh’s financing infrastructure, dismantling its network, countering its ideological influence and addressing the flow of foreign fighters, the revised strategy includes the objective of preventing violent extremism in the countries of the region as one of its main lines of action – a matter which continues to receive increased attention beyond this region. ²¹ Indeed, despite the defeat of Da’esh on the ground, it is recognised that the online presence of Jihadi organisations, through various publications and on social networks, remains high. Strengthening the fight against ‘extremist Islamist ideology’, especially on the Internet, is at the heart of the 2020 conclusions on EU external action on preventing and countering terrorism and violent extremism. ²² For the first time, the focus is not exclusively on religious extremism but also on the growing threat from the far right and far left, which underlines the need for a dialogue with the third countries concerned and with global tech companies on ways to effectively counter violent extremist propaganda on the Internet. This brief overview shows how the ideological pull of terrorist groups outside the EU has long called for the development of synergies between the internal and external dimension of the fight against extremist ideologies. However, the numerous priorities promoted to stem the different channels of dissemination of terrorist ideology and the variety of tools considered for this purpose do not facilitate the readability of this major axis of the fight against terrorism.

The fight against extremist ideologies can be broken down into a variety of priorities which have diversified, both in terms of their direction and their scope, as the terrorist threat has evolved. It involves a range of actors from policy makers, law enforcement, industry (mainly Internet providers) to civil society partners and practitioners. Although there is no authoritative classification of the many measures involved in the fight against extremist ideologies, ²³ there are several recurring priorities. One is to punish, by means of criminal law, extremist expressions inciting/glorifying terrorist violence through existing legislative frameworks (e.g. Directive 2017/541 on combatting terrorism). Another – complementary to the previous one although dealt with separately – is to support efforts to detect and remove extremist/terrorist content online. Another is the development of ‘strategic communications’ tools promoting alternative narratives to those advocated by extremist propaganda outlets, which has been a constant priority. This categorisation is just one possible classification among others (e.g. objectives of binding nature vs soft measures; countering extremist ideologies online/offline, etc.). It does not reflect the full range of measures addressing the numerous interconnected challenges. For instance, enhancing cooperation with international actors (e.g. private Internet actors) has become an inseparable objective of the fight against extremist content online. Furthermore, it is possible that indirect measures pursuing broader objectives, such as the fight against poverty, poor democratic governance and inequality, may indirectly contribute to reducing the conditions that allow extremist ideologies to flourish. Adding to this complex landscape is the gradual broadening of the fight against extremist ideologies to new concerns, such as undesirable foreign funding fuelling the development of rigorist religious doctrines within the EU ²⁴ or the impact of the war in Ukraine on the threat of terrorism and violent extremism. ²⁵ Moreover, the discourse is not always systematic, as shown by the frequent use of the terms ‘extremism’ and ‘terrorism’ interchangeably. As a result, the fragmented and evolving nature of the fight against extremist ideologies makes it difficult to understand its precise meaning and delimitation.

In addition, while the spread of extremist ideologies is an important focus of the EU’s counter-terrorism efforts both internally and externally, this does not mean that these two components are evolving in the same way. By comparison, while attention is progressively shifting towards the spread of right wing ideologies ²⁶ and, to a lesser extent, to left wing extremism and anarchist movements within the EU, ²⁷ most of the initiatives promoted outside the EU have so far focused on addressing the spread of Islamist/jihadi ideology. This asymmetric evolution is becoming prominent in view of the gradual broadening of the concept of ‘extremism’ in internal discussions at EU level. According to the 2022-2023 strategic orientation for a coordinated EU approach to the prevention of radicalisation, within the EU the threat posed by violent Islamist extremism and right wing extremism remains significant, while the increasingly fragmented and variegated nature of emerging violent ideologies is generating a new phenomenon labelled as ‘hybrid ideologies’. ²⁸ It appears that such ideologies have been exacerbated by the context of the COVID-19 sanitary crisis, where conspiracy theories as well as movements opposing vaccination and technology have provided fertile ground for their proliferation. ²⁹ This evolution marks an important shift in the ideologies considered dangerous within the EU, which seem increasingly disconnected from the terrorist threat. This trend is confirmed by the Europol TE-SAT report for 2022, which also identifies the emergence of other potential sources of violent extremism generated by the war in Ukraine. ³⁰ Concomitantly, discussions on the prevention of radicalisation are gradually extending to ‘non-violent/not yet violent forms of extremism’ which can pose a threat to European values and no longer solely focus on ‘violent’ forms of extremism. ³¹ This change in terminology is emblematic of the elasticity of the notion of ‘extremism’ as encompassing not only behaviour which legitimises or advocates the use of (terrorist) violence but also behaviour that runs counter to the EU’s values and which contributes to the polarisation of society.

Despite the vagueness of the discourse on the fight against extremist ideologies, and whatever asymmetries may be detected between the internal and external dimensions, this objective is not merely theoretical, as will be demonstrated. The range of initiatives promoted and/or adopted to counter the spread of terrorist ideology seem to form an increasingly consistent policy package within the more general policy of prevention of extremism/radicalisation. Nevertheless, the initiatives adopted in this area do not enjoy uniform support, nor do they involve the same type of measures, depending on the sensitivity of the issues they address.

An objective that is no longer merely theoretical but remains a source of major challenges

The fight against extremist ideologies is no longer a purely rhetorical objective, as some authors have argued. ³² In addition to having permeated the political EU agenda, it has also gradually acquired an operational dimension in some respects. Recent terrorist attacks in several Member States have been a driving force behind these developments. While the EU has no explicit competence to combat extremist ideology, several dimensions of this combat intersect with broader common objectives (e.g. the prevention of terrorism; the functioning of the internal market) and can therefore be incorporated into a pre-existing framework while contributing to its renovation.

For instance, some European actors have undergone an extension of their prerogatives to help Member States deal with specific aspects of the fight against extremist propaganda. Following the Charlie Hebdo attacks, Europol’s mandate was progressively extended to support Member States’ actions in preventing the dissemination of content related to terrorism or violent extremism via online platforms. After being given new tasks in 2016 to support Member States in making referrals of terrorist content to online service providers, ³³ Europol has recently been entrusted with new powers to deepen its cooperation with Member States and private parties (e.g. online service providers) in this regard. ³⁴ These developments show the growing operational role of Europol in combatting extremist propaganda online. At the judicial cooperation level, the legal and operational challenges in prosecuting violent right wing extremism groups through the framework established by Directive (EU) 2017/541 on combatting terrorism have given rise to discussions at Eurojust. ³⁵ In this regard, it must be noted that, whilst extremist ideologies are not punishable per se within the EU, the expression of ideas inciting or promoting violence, such as those conveyed by terrorist propaganda, may fall within the scope of conduct defined as criminally punishable at EU level (e.g. Directive (EU) 2017/541 on combatting terrorism; Framework Decision 2008/913/JHA on combatting certain forms and expressions of racism and xenophobia). ³⁶ Beyond the potential of police and judicial cooperation instruments, the EU legislator has also mobilised internal market provisions to adopt new binding rules aimed at ensuring the effective removal of terrorist content from Internet platforms. ³⁷ Thus, while the fight against extremist ideologies has developed within the pre-established framework of the fight against terrorism and occupies an increasingly important place in it, it has also emancipated itself from it.

The operational support provided by the EU does not only focus on the law enforcement dimension of the fight against extremist ideologies. Supporting policy makers and practitioners in developing ‘strategic communication’ strategies aimed at challenging extremist ideas is a flagship initiative supported by the European Commission. For example, the Internal Security Fund (ISF) for Police has been used to fund several EU networks aimed at fostering the exchange of knowledge and experience on this subject matter. This is the case of the Radicalisation Awareness Network (RAN) which, although dealing with broader issues, includes a working group entirely dedicated to ‘Communication and narratives’ (Communication and Narratives Working Group (RAN C&N). ³⁸ This funding instrument has also led to the creation of temporary specialised networks, such as the European Communication Strategic Network (ECSN), ³⁹ whose core mission was to support the development of Member States’ capabilities to counter extremist narratives through strategic communications. In contrast to the binding legislative measures, this kind of ‘soft’ initiative allows for a more flexible horizontal support through the exchange of expertise between first line actors and with a view to developing concrete deliverables.

While the abovementioned initiatives have an internal scope in the sense that they apply/are made available to EU Member States, some initiatives taken outside the EU mirror internal ones. In this regard, mention should be made of the Task Force for Outreach and Communication in the Arab world (StraCom Task Force South), which was set up in 2015 to improve communications and outreach in the southern neighbourhood and to develop and promote positive narratives about the EU and its policies. ⁴⁰ Its activities have been designed in a similar way to internal initiatives, namely the Syria Strategic Communication Advisory Team (SCAT), which later became the aforementioned ESCN. ⁴¹ More recently, it is interesting to note that the RAN has extended its support to the benefit of the EU’s neighbouring candidate countries. Within the context of the RAN in the Western Balkans project, the RAN currently supports the implementation of a number of priorities set out in the Joint Action Plan on Counter-terrorism for the Western Balkans, including with regard to ‘Effective prevention and countering violent extremism’. If the latter priority does not exclusively deal with the ideological question, concrete deliverables published by the RAN show an interest in cooperating on these issues. ⁴² The above examples give a representative view of the concrete initiatives undertaken at EU level to act on the different fronts of the fight against extremist ideologies.

Despite these achievements, the ambition to tackle the pull of terrorist propaganda faces many challenges. Although there is a consensus on the need to better understand and to address the problem of the propagation of extremist ideologies, the views expressed by Member States on this issue do not necessarily converge given their different political and cultural sensitivities. Among the Member States affected by the phenomenon of extremism, not all are concerned with the same kind of ideologies. Some of them consider that jihadism/Islamist ideology remains a top priority, whereas others shift the debate to the rise of right wing extremism, left wing extremism, anarchism, anti-semitism or anti-democratic behaviour. ⁴³ In a similar vein, while some EU countries focus on radicalisation leading to terrorism as opposed to radicalisation per se, ⁴⁴ others consider it necessary to gain a better understanding of and address ‘non-violent forms of extremism’ given the threat they pose to EU values. ⁴⁵ Moreover, among the many priorities identified on these issues, some intersect with particularly sensitive topics such as religion or secularism and are approached with reluctance. A case in point is the issue of the training of Imams which infuses discussions on the prevention of radicalisation at the EU level. Some Member States stress in particular that any initiative taken in this respect should not be perceived as ‘Europeanising Islam’ and stigmatising communities. ⁴⁶ Denmark pleaded that initiatives towards the training of Imams must not be labelled as measures for countering terrorism or preventing extremism and suggested that this topic should be dealt with in other EU fora. ⁴⁷ Given the sensitivity of these issues and the varying needs of Member States, it is not surprising that more flexible and smaller cooperation formats are favoured on these issues, such as through ‘project-based collaboration’ led by Member States with the support of the European Commission. ⁴⁸ This working format allows like-minded Member States to collaborate among a relatively limited group of participants and through a series of meetings towards concrete deliverables that help with the implementation of better policy responses. It is within this framework that some projects have been carried out on the issue of violent right wing extremism, some of which have led to concrete results (e.g. the adoption of a non-binding working definition of this phenomenon). ⁴⁹

Differences of approach are also visible at the level of the EU institutions. For instance, although the objective of engaging with ‘moderate’ ⁵⁰ Islamist groups outside the EU has long been promoted by EU institutions as a way to counter violent extremism and terrorist recruitment, ⁵¹ the question of the EU’s relationship with Islamist actors remains a deeply divisive and sensitive issue within the EU. As some authors have pointed out, there is no common EU policy line on engagement with moderate Islamist interlocutors in a general sense and the considerable resistance expressed by national governments has so far not led to concrete results. ⁵² Despite the sensitivity of the topic, Gilles de Kerchove, the former EU counter-terrorism coordinator, took a stand on the issue of the spread of extremist interpretations of Islam in Europe and in other parts of the world as he saw it as an important part of the fight against radicalisation. ⁵³ Based on his conviction that the EU needs to address ideology as one factor that leads to radicalisation, he has greatly contributed to raising this matter at EU level as well as to integrating work on ‘ideology’ into EU activities dedicated to the prevention of radicalisation. ⁵⁴ Outside the EU, he also convinced the EU Council to launch a dialogue with Saudi Arabia and other Gulf partners to counter the influence of Wahhabism (‘counter-extremism project’) while supporting initiatives from the reformist European Muslim community for the training of Imams, Arab language teachers and prison Imams to promote interpretations of Islam that are fully in line with European values, the rule of law and fundamental rights. ⁵⁵ Nevertheless, religious issues linked to extremism remain delicate in terms of how they are dealt with at EU level and, despite reflections on the added value for the EU to conduct a dialogue with radical Islamist groups, ⁵⁶ this option does not yet seem to enjoy sufficient support. The sensitivity of the issues at stake is only one of many challenges surrounding the fight against extremist ideologies. Evaluating the effectiveness of measures taken in this area is another matter of debate on which the EU has committed to make progress. ⁵⁷ As pointed out by an EU counter-terrorism expert, Gijs de Vries, there is little evidence that strategic communication aimed at countering violent extremist narrative is effective. ⁵⁸ According to him, since 2005, the EU has largely left the task of counter-messaging to the Member States and has instead focused on disrupting terrorist content on the web. ⁵⁹ Unlike the above-mentioned initiatives with a religious dimension, the EU’s action against the spread of extremist content online enjoys broad consensus, which can be explained by the strong cross-border dimension of the Internet and the fact that it is not possible for EU Member States to act in isolation on these issues.

The new Regulation addressing the dissemination of terrorist content online: towards a stronger role for the EU in securing the online space

As mentioned earlier, detecting and removing extremist/terrorist content online is only one facet of the fight against extremist ideologies, ⁶¹ but one that has undergone major developments in recent years. Concerns about the use of the Internet to recruit, encourage attacks, provide training and glorify terrorist activities is not new and has led to a significant extension of the criminal offences related to terrorist activities, as set out in the former 2002 Framework Decision on combatting terrorism. ⁶² Since then, the issue of the propagation of extremist/terrorist content online has attracted growing attention as a result of the focus on addressing radicalisation online. ⁶³ The attention paid to this issue has increased considerably given the impact of several terrorist attacks within and outside the EU, which have shown a link between online messages advocating the use of violence and the actual use of physical violence (e.g. the live streamed terrorist attack in Christchurch, New Zealand and the murder of Professor Samuel Paty in France), not to mention the impact of COVID-19, which is believed to have increased exposure to extremist content online. ⁶⁴ The speed of propagation of online content, which, once deleted, can be re-uploaded onto other platforms, in addition to the fact that many extremist websites are hosted outside the EU, are among the many challenges faced in terms of combatting abuses of online services by terrorists. ⁶⁵ Against this background, the EU has been actively working to strengthen cooperation with online platforms (i.e. hosting service providers that store information provided by and at the request of a content provider such as Facebook or Google) through different kinds of initiatives.

The Regulation on addressing the dissemination of terrorist content online (TCO Regulation) was proposed by the European Commission in 2018 ⁶⁶ due to the lack of sufficient results in reducing the volume of terrorist content circulating online. It marks an important shift from a ‘soft approach’ based on voluntary cooperation with private Internet platforms to a more binding approach imposing greater responsibility on them for the content they host. This new Regulation thus complements the many EU efforts made in this area since 2015 through a framework of voluntary cooperation between Member States and hosting service providers. In this regard, mention should be made of the EU Internet Forum (EUIF), which was launched by the European Commission and serves as a platform for voluntary cooperation with Member States and the Internet industry to reduce accessibility to online terrorist content. The work carried out in this forum covers a wide range of topics which have expanded in number (e.g. ‘video gaming’; ‘violent right wing extremism/terrorism’ symbols) and seeks to facilitate the implementation of a policy response to terrorist attacks with an online dimension (e.g. by developing guidelines to support companies’ content moderation decisions). ⁶⁷ Among the flagship voluntary initiatives supported by the forum is the ‘EU Crisis Protocol’, which was adopted in the aftermath of the live streaming of the Christchurch attack in March 2019 to respond to the viral spread of terrorist and violent extremist content online. ⁶⁸ Concurrently with the creation of the EU Internet Forum, the EU has also been working to strengthen the capacity of Europol in this area. ⁶⁹ The Internet Referral Unit (IRU), which was set up at Europol following the Paris attack in 2015, has been entrusted with the task of supporting the competent national authorities by detecting/flagging/assessing terrorist and extremist content online and requesting that the private company concerned delete it. Despite Europol’s enhanced capacity in this area, ⁷⁰ the Europol Internet Referral Unit has no enforcement powers to decide on the removal of a flagged piece of content and its work relies to a large extent on cooperation from private Internet companies, which, until recently, enjoyed a wide margin of discretion in this matter.

Despite the progress made through the above initiatives and the content removal mechanisms already in place in several Member States, the European Commission found that voluntary proactive measures taken by Internet platforms were not sufficient to address the scale of the problem. ⁷¹ The Commission therefore proposed to step up action against online terrorist content by means of a mandatory legal framework applicable to Internet platforms offering services in the EU. ⁷² The need to enhance action in relation to terrorist content online through legislation at EU level has been widely supported by the Member States and other EU institutions, ⁷³ particularly in the light of several terrorist incidents showing an online dimension. ⁷⁴ Thus, after four years of negotiations, the Regulation on addressing the dissemination of terrorist content online was adopted in April 2021. ⁷⁵ The main purpose of this Regulation is to provide a clear and harmonised legal framework to ensure the prompt removal of or the blocking of access to terrorist content hosted on online platforms. One of its flagship measures is to require hosting service providers to remove or block access to flagged content within one hour of receiving a notification from the national competent authorities. ⁷⁶ In the event of non-compliance with the removal order, they may incur financial penalties, which may differ depending on the nature and size of the platforms. Hosting service providers exposed to terrorist content may also be asked to take proactive measures to prevent misuse of their services for terrorist purposes. ⁷⁷ This new Regulation is thus a stark illustration of the growing role that the EU intends to play to put pressure on internationally active digital platforms to eradicate terrorist propaganda. Several parallel initiatives have been put in place to enable online platforms to fulfil their new obligations, including through Europol. The strengthening of cooperation between Europol and private parties, as foreseen by the new Europol Regulation, should facilitate, in particular, exchanges between Europol, Member States and private parties with regard to removal orders for online terrorist content. ⁷⁸ This ensures consistency with the TCO Regulation, which gives Europol a coordinating role to avoid the duplication of identical removal orders and to ensure that the injunction issued does not prejudice an ongoing investigation (‘deconfliction’). ⁷⁹ Moreover, in 2022, Europol launched an EU Platform for referrals and removal orders (PERCI), which should serve as a communication and coordination tool between Member States and relevant online service providers for handling online terrorist content and other illegal content. ⁸⁰

In light of the above, one cannot fail to note the numerous efforts undertaken at EU level to tackle the spread of online terrorist content in recent years through a combination of soft and binding initiatives. Other initiatives with a broader scope, such as the Regulation on a Single Market for Digital Services (Digital Services Act), ⁸¹ confirm the EU’s ambition to play an influential role in the global debate on the regulation of illegal online content. While the entry into force of the new TCO Regulation in June 2022 is too recent to assess how well it has been applied, many criticisms have nevertheless been levelled at it by digital rights activists and human rights bodies. ⁸² Some of the most controversial issues raised by the adoption of this Regulation include: the one-hour rule imposed on host service providers to delete/block the content at issue, which is considered too tight; the cross-border scope of the removal order; the nature of the authority issuing the removal order, which the European Parliament insisted had to be a competent judicial or independent authority; accommodations for small business, as it is feared that the Regulation will be difficult for medium-sized platforms and SMEs to implement; penalties, in particular those that affect the target company’s turnover. ⁸³ These are in addition to other contentious points raised by digital rights and human rights activists, among which are the definition of ‘terrorist content’, which is still considered too broad although it is now fully aligned with that of the Directive on Combating terrorism; ⁸⁴ or the risk that proactive measures taken by hosting service providers, where appropriate through the use of automated tools (e.g. an algorithm), may lead to disproportionate interference with freedom of expression. ⁸⁵ As an illustration of the concerns raised by the entry into force of the TCO Regulation, an action was recently brought before the French ‘Conseil constitutionnel’ to challenge the validity of the French law implementing the EU Regulation on online terrorist content. ⁸⁶ However, contrary to the arguments put forward by the French National Assembly, ⁸⁷ the Conseil constitutionnel ruled that the contested provisions contain sufficient safeguards to be considered compatible with freedom of expression and communication. ⁸⁸

Without going into detail about the many concerns surrounding the adoption of this new Regulation, the following discussion will focus on the issue of its territorial scope.

An EU internal instrument with an extraterritorial reach?

The Regulation on addressing the dissemination of online terrorist content can certainly be categorised as an internal instrument in the sense that it is intended to apply to EU Member States. Despite its security purpose, it is based on Article 114 of the Treaty on the Functioning of the European Union (TFEU) on the establishment and functioning of the internal market and not on the provisions defined in Title V of the Treaty, relating to the area of freedom, security and justice. As explained in the Regulation proposal, ⁸⁹ Article 114 was the legal basis chosen as the proposal is designed to harmonise the conditions for hosting service providers to provide cross-border services in a way that will address the differences between Member States, which might otherwise obstruct the functioning of the internal market. Moreover, under Article 114, it would also be possible to impose an obligation on hosting service providers established outside the EU, in cases where their activities affect the internal market ⁹⁰ - a preferred option in this case.

The TCO Regulation applies to hosting service providers offering their services in the EU regardless ‘of their place of main establishment, insofar as they disseminate information to the public’. ⁹¹ In other words, hosting service providers which are established in third countries will also be subject to the obligations under the TCO Regulation. In accordance with the procedure laid down in Article 17 thereof, a hosting service provider which does not have its main establishment in the EU ‘shall designate, in writing, a natural or legal person as its legal representative in the Union for the purpose of the receipt of, compliance with and the enforcement of removal orders and decisions issued by the competent authorities’. ⁹² The choice to give this instrument a broad scope stems from the concern that terrorist content is often disseminated to the public through hosting service providers established in third countries. ⁹³ To protect users in the EU and to ensure that all hosting service providers operating in the digital single market are subject to the same requirements, this Regulation therefore applies to all providers of relevant services offered in the EU, irrespective of the country of their main establishment. ⁹⁴ The TCO Regulation can thus be seen as another example of the so-called ‘Brussels effect’, which refers to the EU’s capacity to regulate global markets. ⁹⁵

Under the new Regulation, the competent authority of each Member State will have the power to issue a removal order requiring hosting service providers to remove terrorist content or to disable access to it in all Member States. ⁹⁶ To put it differently, the Regulation applies to hosting service providers – regardless of where they are established – but the scope of their obligation to remove content or to block access to it is limited to the EU Member States’ territories. This territorially limited effect is all the more logical since, while the fight against terrorist propaganda is becoming more international, the scope of freedom of expression varies considerably from one continent to another. This clarification is also important when one considers the possibility admitted by the Court of Justice of the European Union (CJEU) to give far-reaching effect to removal orders. Indeed, the CJEU has recently had occasion to rule on these issues in the Glawischnig-Piesczek case, ⁹⁷ whereby the Court considered, among other things, that EU law does not preclude a national decision to remove illegal content from having worldwide effect. ⁹⁸ Admittedly, the case in question was not related to the fight against the dissemination of terrorist content; it concerned the interpretation of the ‘e-commerce Directive’ in relation to content that was illegal because of its defamatory nature. The fact remains that the possibility left open by the Court to give a removal order global effect was guided by considerations of efficiency – which is also a key concern of the fight against the dissemination of terrorist content online.

Although the power given to any assigned competent authority in EU Member States to order the deletion or the blocking of access to online terrorist content in all Member States is the main added value of the Regulation, it raised significant concerns during the negotiations. ⁹⁹ This is especially the case since Member States remain free as to the choice of the competent authorities allowed to issue removal orders, be it administrative, law enforcement or judicial authorities ¹⁰⁰ - thus raising fear of a lack of judicial oversight over the procedure. In connection with this, the discussions focussed on the guarantees applicable to cross-border removal orders ¹⁰¹ - i.e. the case where a removal order is issued by a competent authority of a Member State to a hosting service provider which has its main establishment in another Member State (‘host Member State’). At the request of the European Parliament, a decision was finally taken to strengthen the guarantees applicable to cross-border removal orders by introducing a scrutiny procedure (Article 4). Under this procedure, the competent authority of the host Member State may, on its own initiative, scrutinise the removal order issued by competent authorities of another Member State to determine whether it seriously or manifestly infringes the TCO Regulation or the fundamental rights enshrined in the EU’s Charter of Fundamental Rights. ¹⁰² This scrutiny procedure should be seen in combination with other changes that aim to give hosting service providers the right to request a reassessment of the removal order and to challenge it before a court. ¹⁰³

Whilst the procedure for cross-border removal orders is limited to EU Member States that are presumed to share similar standards of fundamental rights protection, it is nevertheless considered problematic in several respects. Some human rights organisations consider, in particular, that the scrutiny procedure provided by the Regulation does not offer a sufficient safeguard against State overreach and possible abuse of power. ¹⁰⁴ This is particularly the case as the crisis of the rule of law in the EU shows that some Member States are inclined to distance themselves from European values, which leads to a weakening of mutual trust between Member States. One may fear, for instance, that the TCO Regulation could open the way for authoritarian regimes, like those in Poland and Hungary, to silence their critics abroad by issuing removal orders beyond their borders. ¹⁰⁵ Moreover, the Regulation does not prevent disagreements among the EU countries over what constitutes ‘terrorist content’. Although the definition of ‘terrorist content’ as provided by the TCO Regulation is now fully aligned with Directive (EU) 2017/541 ¹⁰⁶ - which is a significant improvement compared to the original version of the text - Member States enjoy a certain margin of discretion to define acts that must be categorised as terrorist offences under EU law. In addition, a number of transposition issues have recently been identified in relation to the abovementioned Directive. ¹⁰⁷ Consequently, these differences in approach may lead to conflict situations. Patrick Breyer, who was the shadow rapporteur on the file and who is an MEP from the Pirate Party, worries in particular that Europe’s more illiberal governments will have their own interpretations of what constitutes terrorist activity. ¹⁰⁸

In brief, the adoption of this new Regulation is a significant step forward in the fight against terrorist propaganda online but its implementation raises significant concerns about its potential for abuse within the EU. Whether these technical measures targeting online terrorist propaganda channels are likely to contribute to the prevention of terrorism is another matter of debate. As stated in the preamble to the TCO Regulation, measures addressing the dissemination of terrorist content online are not sufficient on their own. They should be complemented by Member State strategies to address terrorism, including the strengthening of media literacy and critical thinking, the development of alternative and counter narratives, and other initiatives to reduce the impact of and vulnerability to terrorist content online, as well as investment in social work, deradicalisation initiatives and engagement with affected communities, in order to achieve the sustained prevention of radicalisation in society. ¹⁰⁹