By Joe McNamee

Immediately before the vote on the “net neutrality” vote (in the so-called Telecoms Single Market Regulation), there was a sudden storm around the issue of “child pornography”. What exactly was going on?

Child pornography

The 2011 EU Directive “on combating the sexual abuse and sexual exploitation of children and child pornography” took two years of intensive debate in both the Parliament and Council to adopt. It includes provisions on web blocking, including clear safeguards for its implementation (article 25) and a contradictory explanatory recital (47). That recital permits Member States to circumvent those safeguards by imposing ad hoc “voluntary” measures outside democratic controls, outside the need for democratic review and outside a framework for testing the evidence of effectiveness or risks of negative or counter-productive side effects. The Commission has stated clearly to us that any such measure does not invoke the Member States’ responsibilities under the Charter of Fundamental Rights of the European Union.

2013 draft Telecoms Single Market Regulation

If the European Commission wanted to maintain the measures in the 2011 child exploitation Directive, all it had to do was to include an explanatory recital that the Regulation was without prejudice to the Directive.

Instead of doing this, however, it included an entirely new provision, covering all (undefined) “serious crime,” saying that internet companies could interfere with traffic “to implement a court order or to prevent or impede serious crime”. This would have negated all of the safeguards included in Article 25 of the child exploitation Directive and extended the scope of lawless blocking, filtering and surveillance measures to anything that might be covered by the undefined term “serious crime”.

If there was any doubt about the fact that the Commission was aiming to extend the scope of the types of content that would be covered, this is eliminated by recital 47 of the draft regulation, which says that the proposal covered “prevention or impediment of serious crimes, including voluntary actions of providers to prevent access to and distribution of child pornography”. The fact that the proposal said “including” and not “limited to” means that other (unspecified) content was also covered.

So, if the Commission’s proposal had been accepted by the Parliament, we would have started with a child exploitation Directive containing a detailed set of safeguards for blocking and would have finished with a Regulation on telecoms markets that would have removed safeguards and extended the lawless, unproven, untested blocking measures to unspecified “serious crime”.

What happened in the Parliament

The European Parliament was solidly opposed to this approach and the offending text was rejected over and over again in Committee. Over the eight months of discussions, with this text being voted down again and again, the European Commission said nothing on this subject.

Two days before the vote, there was a majority of MEPs ready to vote for a package of amendments opposing not just the text on lawless blocking, but also on the Commission’s efforts to undermine net neutrality.

Then, suddenly, with less than 48 hours to go before the vote, Member of the European Parliament tell us that Commissioner Kroes’ private office started a campaign of phone calls warning them that the amendments would hurt children.

This is what led to Arlene McCarthy sending her e-mail.

The question is – was the Commission incompetent, putting text into the Regulation that was not needed and then not noticing for eight months as Committee after Committee deleted it?

Or did the Commission say nothing, in order to launch a last minute campaign to destabilise the Parliament immediately before the vote?

Or did the Commission want to expand the range of lawless blocking measures, exploiting child abuse to do so?

Or maybe the Commission has another explanation that they would like to share with us?