Third time's the charm? Law gives the Judiciary Police power to eliminate terrorist content online

A bill has been introduced in Parliament to transpose the European regulation on combating terrorism on the internet into domestic law. This is the third attempt to legislate the granting of powers to the Judicial Police (PJ) to suspend or block digital content without the prior or subsequent knowledge or authorization of a judge. Previous attempts failed due to the downfall of the Socialist Party (PS) and Democratic Party (AD) governments. Lawyers and judges warn that the measure risks facing challenges in the Constitutional Court.

The powers that will be granted to the PJ – to delete or block, without prior authorization from a judge, digital content suspected of expressing terrorist activities via the internet – arise from Portugal's obligation to transpose into national law Regulation (EU) 2021/784 of the European Parliament and of the Council, of April 29, 2021, on combating the dissemination of terrorist content online.

The regulation mandates that member states appoint an authority to issue orders to remove suspicious content, either on their own or at the request of other member states. The choice of the PJ, and the powers granted to it, are at the discretion of the national legislator; in other words, the decision is political.

The proposed law clarifies that the PJ's decision may be issued without prior authorization from a judge, but must then be communicated to the Central Department of Investigation and Criminal Action (DCIAP). Virtual hosting service providers will have just one hour to remove identified terrorist content or block access to such content in all Member States. Exceptionally, they may have a 12-hour period, the Regulation states.

The Superior Council of the Public Prosecutor's Office (CSMP) agrees with the powers granted to the PJ. However, the Portuguese Bar Association (OA), in an opinion submitted to Parliament, states that this constitutes a "flagrant violation of rights, freedoms, and guarantees." "We believe that the power to issue decisions in this matter cannot be attributed to a criminal police body, as an administrative entity under the authority of the Government, but rather to a Court or, under certain circumstances, to the Public Prosecutor's Office."

The National Data Protection Commission argues the same, stressing that such powers "should not be attributed to a Police Force, but to a judicial magistrate", admitting that, "in case of urgency, it could be considered that the Police Force could issue such decisions, subject to subsequent validation".

For the Superior Council of the Judiciary, the "designation of a criminal police body, directly reporting to a member of the Government, to issue suppression or blocking decisions, may "give rise to questions of (un)constitutionality that must be addressed immediately."

The previous proposal, which fell through with the dissolution of the Assembly of the Republic, had been approved by the PSD, CDS-PP, and Chega parties. It is therefore expected to be approved this time as well. "In other words," states Ricardo Sardo, author of the OA opinion, "we will have a police entity, under the auspices of the Government, deciding, instead of the courts, what we see online, which involves fundamental rights such as freedom of expression and freedom of information, in violation of Article 18 of our Constitution and Article 52, paragraph 1 of the Charter of Fundamental Rights of the European Union."

It should be noted that this Regulation has been in force in the EU since June 7, 2022. In January 2023, the European Commission notified 22 Member States, including Portugal, of non-compliance. On June 18 of this year, the EU executive announced that it will sue Lisbon for failing to apply parts of the rules to combat activities considered terrorist on digital platforms.

The bill's debate in Parliament has not yet been scheduled. Judges and lawyers warn that the legislation could be riddled with unconstitutionalities if approved as presented by the government.