Regulations, 2023

L.N. 67 of 2023

CRIMINAL CODE

(CAP. 9)

Addressing the Dissemination of Terrorist Content Online

Regulations, 2023

IN EXERCISE of the powers conferred by article 697 of the

Criminal Code, the Minister responsible for justice has made the

following regulations:-

(1) The title of these regulations is Addressing the

Dissemination of Terrorist Content Online Regulations, 2023.

(2) These regulations shall come into force within two months

from their publication in the Gazette.

These regulations provide for the implementing provisions

of Regulation (EU) 2021/784 of the European Parliament and of the

Council of 29 April 2021 on addressing the dissemination of terrorist

content online.

In these regulations, unless the context otherwise requires

"Charter"; means the Charter of Fundamental Rights of the

European Union;

"Code" means the Criminal Code;

"Court" means the Court of Magistrates as a Court of

Criminal Judicature;

"Member State" means a Member State of the EU and the

European Economic Area;

"Police" means the Malta Police Force;

"Regulation" means Regulation (EU) 2021/784 of the

European Parliament and of the Council of 29 April 2021 on

addressing the dissemination of terrorist content online.

(1) Upon application to the Court filed by a police officer

not below the rank of inspector, a Magistrate may issue a removal

orderin respect of a hosting service provider, in terms of Article 3 of the

Regulation, requiring the hosting service provider in Malta or in another

Member State to remove terrorist content or disable access to terrorist

content in all Member States.

(2) Where a removal order has not been previously issued to

the hosting service provider, the Police shall provide that hosting

service provider with information on the applicable procedures and

deadlines, at least twelve (12) hours before the issuing of the removal

order;

Provided that a lesser period shall apply in urgent cases.

(3) The Police shall transmit the removal order to the contact

point of the hosting service provider by electronic means capable of

producing a written record under conditions that allow to establish the

authentication of the sender, including the accuracy of the date and the

time of sending and receipt of the order.

(4) Where the hosting service provider has its established or

legal representative in another Member State, the Police shall

simultaneously send a copy of the removal order to the competent

authority of the Member State where the hosting service provider has

its main establishment or legal representative.

(5) For the purposes of sub-article (6) of Article 3 of the

Regulation, the hosting service provider shall, without undue delay,

submit the form set out in Annex II of the Regulation by means of an

application to the Court containing information on the removal of the

terrorist content or the disabling of access to the terrorist content in all

Member States, indicating, in particular, the time of that removal or

disabling.

(6) For the purposes of sub-articles (7) and (8) of Article 3 of

the Regulation, the hosting service provider shall submit the form set

out in Annex III of the Regulation, where applicable, by means of an

application to the Court.

(7) When the removal order becomes final with respect to a

hosting service provider having its establishment or legal

representative in another Member State, the Police shall inform the

competent authority of the Member State where the hosting service

provider has its main establishment or where its legal representative

resides or is established, of that fact.

(1) For the purposes of article 5(4) of the Regulation , When a hosting

upon application to the Court filed by a Police officer not below the service

is exposed to

rank of inspector, the Magistrate shall hear submissions from the terrorist content.

Police and the hosting service provider and, on the basis of objective

factors, may decide that a hosting service provider is exposed to

terrorist content and, in such case, notify the hosting service provider

of the decision.

(2) If the Magistrate decides that the hosting service provider is

exposed to terrorist content, the hosting service provider shall, within

three (3) months from receipt of the decision and on an annual basis

thereafter, report to the Police on the specific measures that it has

taken in accordance with the provisions of article 5(5) of the

Regulation.

(3) Where, based on the report referred to in sub-regulation (2)

and, where relevant, any other objective factors, the Police, acting on the

advice of the Critical Information Infrastructure Protection Unit, as

defined in the Measures for High Common Level of Security of

Network and Information Systems Order, consider that the specific

measures taken do not comply with paragraphs (2) and (3) of Article 5

of the Regulation, the Police shall submit a report to the Court by means

of an application filed by a police officer not below the rank of

inspector. The Court shall hear submissions from the Police and the

hosting service provider and may require the hosting service provider to

take the necessary measures.

(4) A hosting service provider may, at any time, request the

Magistrate to review and, where appropriate, amend or revoke any

decision referred to in sub-regulations (1) or (3).

(5) The Magistrate shall, within three (3) months from receipt

of the request referred to in sub-regulation (4), adopt a reasoned

decision on the request based on objective factors and notify the

hosting service provider of that decision.

The Magistrate or the Police may request a hosting service

provider to preserve terrorist content and related data for a specified

period further to that provided in Article 6 of the Regulation, for as long

as necessary, for ongoing administrative or judi1cial review proceedings

or for the purposes of complaint handling in accordance with Article 10

of the Regulation.

(1) When the Police receive a copy of a removal order

issued by the competent authority of another Member State against a

hosting service provider established in Malta or having its legal

representative in Malta, a Police officer not below the rank of inspector

shall immediately, by means of an application, request the Court to

decide whether it shall scrutinise the removal order in terms of the

Regulation.

(2) Where, following a decision to scrutinise the removal order

and the carrying out of such scrutiny, the Magistrate finds that the

order seriously or manifestly infringes the provisions of the Regulation

or the fundamental rights and freedoms guaranteed by the Charter, the

Magistrate shall adopt a reasoned decision to that effect.

(3) Scrutiny of the removal order and, where applicable,

adoption of the reasoned decision, shall be carried out within seventy-

two (72) hours of receipt of the copy of the removal order by the

Police.

(4) Hosting service providers and content providers shall have

the right to submit, within forty-eight (48) hours of receiving a

removal order, an application together with a reasoned request to the

Court requesting scrutiny of the removal order as referred to in sub-

regulation (1) of this regulation.

(5) The Magistrate shall, within seventy-two (72) hours of

receiving the application referred to in sub-regulation (4), following

scrutiny of the removal order, adopt a reasoned decision setting out its

findings as to whether the removal order seriously or manifestly

infringes the provisions of the Regulation, or the fundamental rights

and freedoms guaranteed by the Charter.

(6) When the Magistrate, upon scrutiny of the removal order,

decides that the removal order issued by the competent authority of

another Member State is in accordance with the provisions of the

Charter and of the Regulation, the Magistrate shall issue a reasoned

decision requiring the hosting service provider to comply with the

requirements of the removal order.

A removal order shall become final upon the expiry of two When a removal

(2) days where no appeal to the Court of Criminal Appeal, Inferior order

final.

Jurisdiction, has been lodged, or upon confirmation following an appeal.

(1) A hosting service provider who fails to comply with Penalties.

one or more of the obligations set out in Article 3(3) and (6), Article 4(2)

and (7), Article 5(1), (2), (3), (5) and (6), Articles 6, 7, 10 and 11, Article

14(5), Article 15(1) and Article 17 of the Regulation shall be guilty of an

offence and shall be liable, on conviction, to the punishment of

imprisonment for a term of not less than 6 (six) months and not more

than two (2) years or to a fine (multa) not exceeding fifty thousand euro

(€50,000) or to both such fine and imprisonment

Provided that where the hosting service provider is a body

corporate having a distinct legal personality, it shall be liable on

conviction to a fine (multa) not exceeding three hundred thousand euro

(€300,000)

Provided further that a hosting service provider that

systematically or persistently fails to comply with the obligation set

out in paragraph (3) of Article 3 of the Regulation shall, on conviction,

be liable to the punishment of a fine (multa) not exceeding four

percent (4%) of his global turnover of the preceding business year.

(2) When imposing punishment, the Court shall take into

consideration Article 18(2) of the Regulation.

€0.45