By Maryant Fernández Pérez

In December 2016, the European Commission issued two reports on the implementation of the Directive on combating the sexual abuse and sexual exploitation of children and child pornography (Child Exploitation Directive, 2011/92/EU): a general report and a specific report about Article 25 of the Directive, which covers removal and blocking of child abuse, child exploitation and child pornography online.

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The publication of the implementation report was delayed for a year. Despite this additional time that the European Commission could have spent on preparing its reports, it has produced unquestionably inadequate documents. In particular, the report on Article 25 fails for at least five reasons:

  1. The Commission provides hardly any statistics. For example, it does not indicate how frequently law enforcement authorities take action after content is reported, numbers of takedowns, speed of processing reports of possibly illegal material, delays in takedowns due to ongoing investigations, the number of websites appearing in blocking lists, the technologies used for blocking, the length of time sites stay on the blocking lists, or the location of sites on the blocking lists.
  2. The report does not address state inaction following content restrictions. These restrictions only solve a small part of the serious problem that needs to be addressed.
  3. The Commission identified public authorities as being crucial to combat child abuse, exploitation and pornography. However, it lists many procedures where no single public authority is involved. This demonstrates a tendency of the Commission to focus on superficial technical “solutions” rather than addressing the crimes in a more meaningful and serious way.
  4. The Commission fails to acknowledge that blocking content can be circumvented. It also fails to report on content that was mistakenly restricted. The Commission failed to recognise that removal of content at source, as part of more comprehensive judicial and law enforcement actions, should be the preferred option, rather than simply trying to block it.
  5. The Commission claims that voluntary measures to tackle child abuse, exploitation and pornography can comply with the Charter of Fundamental Rights of the European Union. With regard to blocking measures, the Commission report identified four safeguards, but failed to assess whether Member States abide by them, contrary to the assurances it gave to EDRi in 2012.

A Swedish Member of the European Parliament (MEP) Anna Maria Corazza Bildt (EPP Group) recently published her Draft Report on the implementation of the Directive. It contains some positive elements, in particular, a call for a proportionality approach. Nevertheless, the draft report contains points that should be improved. For example, its criticism towards the Commission and the Member States with regards to the flaws in the implementation of this important instrument is too gentle. It depicts the “darknet” as a challenge, and ignores the benefits it provides to the internet ecosystem. The report also describes encryption as a “new” technology that creates one of the “main challenges” for law enforcement and judicial authorities, while ignoring that encryption is needed to share sensitive information concerning criminal investigations.

The Parliament will continue its work on the report in the autumn. There is still time for it to assume its role and obtain better results for the protection of children and fundamental rights. We hope, in particular, that the Parliament demands for a new and better report from the Commission, so that any future legislation will be based on strong evidence, thereby protecting all of the rights at stake in this complex policy area.

EDRi’s position paper on the European Commission’s implementation report on Article 25 of Directive 2011/92/EU (12.07.2017)
https://edri.org/files/children/childexploitationdirective_libedraftreport_edripositionpaper_20170712.pdf

Commission’s report on the implementation of Article 25 of Directive 2011/92/EU of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography (16.12.2016)
http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1486726102713&uri=CELEX:52016DC0872

European Commission’s response to our letter on the blocking aspect of the Child Exploitation Directive (26.11.2012)
https://edri.org/files/priebe_response.pdf

EDRi’s letter to the Commission on the blocking aspect of the Child Exploitation Directive (02.11.2012)
https://edri.org/files/blocking_20121102.pdf

Directive on combating the sexual abuse and sexual exploitation of children and child pornography 2011/92/EU (13.12.2011)
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0093

(Contribution by Maryant Fernández Pérez, EDRi)

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