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It does not only affect large platforms: Almost any service that enables third parties to post or share content can fall within the scope of Regulation (EU) 2021/784 on addressing the dissemination of terrorist content online (TCO Regulation). The regulatory framework is aimed at providers of hosting services and thus ties in with structures that may also exist in forums, blog comments, community areas, rating functions, or comparable user content. Anyone who does not keep the obligations under the TCO Regulation in mind exposes themselves to the risk of regulatory measures and sanctions.
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Scope of application: When user content may fall under the TCO Regulation
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Providers of hosting services as addressees
\nThe TCO Regulation covers hosting services, i.e., services that store information on behalf of users and make it accessible to the public. What matters is not the name of the service, but the actual technical and organizational design: Where third parties can upload, post, or otherwise have content stored, a hosting service within the meaning of the Regulation may exist.
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Typical constellations in forums, blogs, and websites
\nRelevant constellations may include, in particular, comment sections, forum posts, upload functions, user profiles, group areas, marketplace or classified-ad modules, as well as rating and review tools. Even if such functions are only part of the overall offering, they may be sufficient to trigger obligations under the TCO Regulation.
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Subject matter of the regulation: “terrorist content online”
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Conceptual classification
\nThe Regulation works with an autonomous concept of content. It focuses on whether content falls under the categories defined in the TCO Regulation, which in terms of substance may relate to the causes, objectives, or modes of commission of terrorist offences. The regulatory purpose is aimed at preventing the dissemination of corresponding content via online services.
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Questions of delineation in the tension with permissible communication
\nInsofar as the TCO Regulation refers to specific types of content, delineations from permissible reporting, academic engagement, artistic depictions, or documentary reappraisal may be significant. The classification depends on the context, purpose, and specific design of the respective contribution.
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Central instrument: the removal order
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Administrative order and time requirements
\nThe core mechanism of the TCO Regulation is the removal order issued by the competent authorities. It may be directed at removing or blocking access to online content classified as terrorist. The Regulation provides strict time requirements for this, which may pose organizational challenges to providers’ ability to respond.
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Cross-border effect within the EU
\nThe Regulation is designed to apply across the Union. Removal orders may become relevant across borders because hosting services are often established in one Member State, while their services are accessible throughout the EU. This can give rise to questions of competence and coordination that are of practical importance for providers even where services are perceived as purely national.
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Procedural framework and aspects of legal protection
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Communication, documentation, and traceability
\nThe TCO Regulation is based on procedural-law elements aimed at transparency and verifiability. These include, in particular, requirements for handling orders and for the traceability of the measures taken within the envisaged procedures.
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Notes on ongoing proceedings and reporting
\nInsofar as measures, investigations, or administrative decisions are reported on, the following applies: Ongoing proceedings may be reported on only with due regard to the presumption of innocence; statements of fact must be substantiated and their origin must remain traceable (e.g., official communications or court decisions as the source). Value judgments must be separated accordingly in order to avoid the risk of incorrect portrayals of suspicion.
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Risk of sanctions in the event of breaches of obligations
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Fines and administrative reactions
\nThe TCO Regulation provides for the possibility of effective, proportionate, and dissuasive sanctions. In the event of infringements—such as inadequate implementation of the envisaged procedures—fines may be considered. In practice, the legal assessment depends on the specific individual case, internal responsibilities, response chains, and the respective implementation.
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Relevance also for smaller services
\nThe obligations are not limited to market-leading platforms. In particular, services that enable user interactions “on the side” may fall under the rules without having taken this into account in their risk assessment. This can create a compliance deficit that only becomes apparent when an occasion arises—for example, when contacted by an authority.
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Classification for operators of digital services with community functions
\nThe TCO Regulation establishes an independent, formalized framework for dealing with certain content and official orders. For operators of forums, blogs, and websites with user-generated content, this can have significant organizational and liability implications, particularly if the platform’s structure or internal responsibilities are not designed for such procedures.
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If your company has questions regarding classification as a hosting service, procedural obligations, or risks related to user content, a case-specific assessment can be addressed through legal advice in IT law by MTR Legal attorneys.
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