Provisional conclusion of negotiations on blocking

By EDRi · June 22, 2011

The European Parliament, Council and Commission negotiations on the proposed child exploitation Directive – which originally proposed the introduction of mandatory EU-wide blocking – have provisionally reached a compromise. The text now needs to be approved by the Parliament’s political groups before being voted in in the Civil Liberties Committee in July and in a plenary session of the Parliament in September.

The original proposal demanded the mandatory introduction of blocking (using unspecified technologies) in all EU Member States. The explanatory text (“recital”) of the Directive also encouraged Member States to push Internet providers into blocking outside a legal framework (“supporting and stimulating Internet
Service Providers on a voluntary basis to develop codes of conduct and guidelines for blocking access to such Internet pages”).

The provisionally adopted text (below) removes the obligation on Member States to introduce blocking. However, as some large Member States already have blocking systems in place, the best compromise that was possible was an acknowledgement that Member States “may” still block, subject to certain safeguards.

The explanatory “recital” still explains that the blocking can be “based on various types of public action, such as legislative, non-legislative, judicial or other.” However, the text explains that such measures must provide “an adequate level of legal security and predictability and must comply with the European Convention on Human Rights and European Charter of Fundamental Rights, both of which require a legal basis for restrictions on fundamental rights, such as the rights to communication and privacy. This implies a far stronger level of control than currently exists in several EU countries that at the moment have entirely lawless blocking, such as Sweden and Denmark.

Regrettably, obligations on Member States to take real measures in relation to material hosted abroad, such as the removal of the sites, identification of victims and prosecution of the criminals behind the sites are remarkably weak. The article places an almost meaningless obligation on Member States to “endeavour” to have websites removed, while the explanatory recital absurdly weak suggestion that that Member States “should do their best” to have the websites removed.

The provisionally adopted text are as follows:

Article 21

Article 21

Measures against websites containing or disseminating child pornography

1. Member States shall take the necessary measures to ensure the prompt removal of webpages containing or disseminating child pornography hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.

2 Member States may take measures to block access to webpages containing or disseminating child pornography towards the Internet users in their territory. These measures must be set by transparent procedures and provide adequate safeguards, in particular to ensure that the restrictions is limited to what is necessary and proportionate, and that users are informed of the reason for the restriction. These safeguards shall also include the possibility of judicial redress.

Explanatory Recital

(13) Child pornography, which constitutes sex abuse images, is a specific type of content which cannot be construed as the expression of an opinion. To combat it, it is necessary to reduce the circulation of child abuse material by making it more difficult for offenders to upload such content onto the publicly accessible Web. Action is therefore necessary to remove the content and apprehend those guilty of making, distributing or downloading child abuse images. Member States should do their best to cooperate with third countries in seeking to secure the removal of such content from servers in their territory.

(13aa) However, despite such efforts, the removal of child pornography content at its source is often not possible where the original materials are not located within the Union, either because the State where the servers are hosted is not willing to cooperate or because obtaining removal of the material from the State concerned proves to be particularly long. Mechanisms may also be put in place to block access from the Union’s territory to internet pages identified as containing or disseminating child pornography. It is understood that the measures undertaken by Member States in accordance with this directive in order to remove or, where appropriate, block websites containing child pornography could be based on various types of public action, such as legislative, non-legislative, judicial or other.[1] In this context, the provisions of this directive are without prejudice to voluntary action taken by the internet industry to prevent misuse of their services, or to any support for such action by Member States. Whichever basis for action or method is chosen, Member States should ensure that it provides an adequate level of legal security and predictability to users and service providers. Both with a view to the removal and the blocking of child abuse content, cooperation between public authorities should be established and strengthened, particularly in the interest of ensuring that national lists of websites containing child pornography material are as complete as possible and of avoiding duplication of work. Any such developments must take account of the rights of the end users, adhere to existing legal and judicial procedures and comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. The Safer Internet Programme has set up a network of hotlines whose goal is to collect information and to ensure coverage and exchange of reports on the major types of illegal content online.

(new) This Directive aims to amend and expand the provisions of Framework Decision 2004/68/JHA. Since the amendments to be made are of substantial number and nature, the Framework Decision should in the interests of clarity be replaced in its entirety in relation to Member States partipicating in the adoption of this Directive

(13a) The Council, in accordance with paragraph 34 of the Interinstitutional agreement on better law-making, should encourage Member States to draw up, for themselves and in the interest of the Union, their own tables, which will, as far as possible, illustrate the correlation between the Directive and the transposition measures and to make them public.