Part 2 of our letter and response from the European Commission, regarding the apparent policy of censoring "terrorist" websites.
Questions and Answers 1 to 4 (of 17):
1) Are you proposing a European Union version of the national level firewall content filtering and censorware software such as is used in the "Great Firewall of China" or in Saudi Arabia and other repressive regimes ?
At such an early stage of our consultations it would be premature to speak about a specific solution, however we can certainly reassure European citizens regarding the commitment of the European Union to the respect of human rights, which applies to all fields where it is competent, including the fight against terrorism. Indeed, as Article 6 of the TEU sets out,
TEU = Treaty of the European Union
the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. In consequence, policy options undermining such principles will be necessarily ruled out as opposed to the democratic values that are common to all Member States and constitute the basis of our society.
2) Are you proposing to ban websites in the United States of America, such as Yahoo Groups or the Google search engine cache ? This is where the vast majority of home made bomb making instructions are written and published on the internet.
Your example highlights the problem of tackling such content, since indeed much of it is hosted outside of the European Union where we lack jurisdiction, or may be readily moved there. Also a particular web site may contain both legitimate content and content aiding or abetting terrorism. Such factors will be considered as part of our consultation process.
3) How exactly is such censorship compatible with the European Convention on Human Rights, Article 10, the right to freedom of expression ?
Once again, we must insist on the early stage of the Commission's work. We are still considering different legislative and non-legislative solutions to tackle the problem of the terrorist use of the internet. Nevertheless, we can assure you that we are perfectly aware of the negative impact that some interventions might have on the right of freedom of expression. In this sense, we must note that, in accordance with the Communication of the Commission of 27 April 2005, an in-depth impact assessment study will assess the impact on Fundamental Rights. Furthermore, as explained above under question 1, the commitment of the European Union with the respect of human rights would rule out any policy option not compatible with the right to freedom of expression.
4) Which definition of "terrorism" are you going to use ?
N.B. the very definition of "terrorism" is currently under review in the United Kingdom, by Lord Carlile of Berriew Q.C the independent reviewer of the complicated Terrorism legislation in the UK.
The European Union counts with a a harmonised definition of terrorism. Indeed, one of the main achievements of the Framework Decision of 13 of June 2002, on combating terrorism
was the harmonisation of the definition of terrorist offences. Indeed, Article 1(1) includes a definition of terrorist offences which contains a subjective element or terrorist intention as well as an objective element or a list of certain criminal behaviours. Both elements must be present for a conduct to qualify as a terrorist offence. It is interesting to note that, straight after defining a terrorist offence, Article 1(2) stets that "this Framework Decision shall not have the effect of altering the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty of the European Union".
So how does the UK's Prevention of Terrorism Act 2005 i.e. Control Orders - effectively House Arrest, without being able to see or directly challenge "secret intelligence", rather than actual evidence, square with this Fundamental Principle ?
In addition, the Framework Decision harmonizes the definition of offences relating to a terrorist group (Article 2) and offences linked to terrorist activities (Article 3). It also ensures that offences referred to in Articles 1, 2 and 3 are punishable in all Member States by effective, proportionate and dissuasive criminal penalties (Article 5) as well as the incitement, aid, abet or attempt to commit such offences (Articles 4 and 5).
In consequence, such provisions constitute our starting point. The current reflection and consultation exercise will consider whether a modification of such articles is actually required and if so, how exactly the Framework Decision should be modified.