What should be done when the assessments of the HSP and the competent authority conflict?
HSPs as well as the content provider have the right to challenge removal orders under Article 9 of the TCO Regulation. This right is an important check and balance capable of upholding fundamental rights.
Challenges to removal orders are carried out in the courts of the EU Member State whose competent authority ordered the removal. HSPs are obliged to keep in secure conditions and for a period of six months all content that has been removed (either as a result of a removal order or other measures), as well as any data associated with the content (e.g., time of publication, account information). This aids the investigation and prevention of terrorist offences or threats and ensures that there is sufficient time to initiate legal challenges to the content removal and, if necessary, to restore the content (TCO Regulation, 27 & 28).
Special case: Cross-border removal orders (TCO Regulation, Art. 4)
If HSPs receive a removal order from a competent authority in an EU Member State other than its ‘home authority’ (i.e. the competent authority of the Member State in which the HSP has its main establishment or legal representative; details on legal representatives follow in chapter 4), a special procedure applies.
When issuing the removal order, the competent authority must also send a copy of that order to the ‘home authority’, within 48 hours, which has a period of 72 hours to review the order. If the removal order is found to infringe on fundamental rights and freedoms enshrined in the Charter, it may issue a reasoned decision, which may constitute an objection.
The HSP must remove and secure the content upon receipt of the removal order (as in the case of a removal order by the ‘home authority’). The HSP (and the author of the removed content) may submit a request for review to the ‘home authority’, which is entitled to review the removal order and respond within 72 hours of receiving the application, having notified the competent authority that originally ordered the removal that a review is being undertaken.
After the reviewing authority has issued a reasoned decision, the relevant actors (namely the original authority, HSP, content provider, Europol if applicable) are notified and, if a breach has been detected, the HSP can immediately restore the content.