EDRi letter on website blocking & EU Charter of Fundamental Rights

By EDRi · November 7, 2012

This article is also available in:
Deutsch: [EDRi: Schreiben zu Netzsperren & der EU-Charta der Grundrechte |]

EDRi sent on 2 November 2012 a letter to Commissioner Malmström
on a legal contradiction in relation to website blocking that
needs to be resolved in order to bring Member States into line with the
Charter of Fundamental Rights of the European Union:

Dear Commissioner Malmström,

As you know, Member States may decide to “block” access to illegal child
abuse websites according to the Directive on combating the sexual abuse
and sexual exploitation of children and child pornography.

While we obviously support the fight against these crimes, the European
Union’s legal system is clear that criminal activity must be addressed
in a framework that respects the rule of law and fundamental rights.
This principle is reflected clearly in Article 52 of the Charter
of Fundamental Rights of the European Union, which states in this regard:

“1. Any limitation on the exercise of the rights and freedoms recognised
by this Charter must be provided for by law and respect the essence of
those rights and freedoms. (…)”

This principle is also clear in the European Convention on Human Rights,
to which the Union is currently negotiating accession. Article 10(2),
for example, requires restrictions to be “prescribed by law”.

During the drafting of the Directive, the Commission evaluated the
impact of different policy options and came to the following conclusion:

“(…) encouragement of self regulation by ISPs to block access to
Internet pages containing child pornography would involve interference
in the right to freedom of expression in Article 10 ECHR (Article 11 of
the EU Charter). In accordance with the ECHR, again, as interpreted by
the European Court of Human Rights in Strasbourg, to respect fundamental
rights such interference needs to be prescribed by law and be necessary
in a democratic society for important interests, such as the prevention
of crime.”

In that analysis, your services clearly and correctly acknowledge that
such blocking would interfere with a fundamental right and would
therefore require a basis in law. We agree completely with this
assessment. However, this understanding was lost during the legislative
procedure, leading to the adoption of recital 47 of the Directive, which
contains the following comment about such blocking mechanisms:

“In that context, this Directive is without prejudice to voluntary
action taken by the Internet industry to prevent the misuse of its
services or to any support for such action by Member States.”

The adoption of the new Directive clearly places the issue of blocking
of such material within the scope of implementation of the Charter
while, although not legally binding, the Commission’s impact assessment
of the same Directive makes it clear that both recital 47 and the
related activities of individual Member States (Denmark, Sweden and the
UK, for example) are contrary to the Charter.

We would therefore request that the Commission take action to bring
current activities (such as “voluntary” blocking in Sweden, Denmark and
elsewhere) in Europe into line with the Charter. Our government
structure is based on the premise that transparent democratic
decision-making leads to the most efficient, effective and proportionate
measures to deal with serious crime – child protection is too important
to be left to ad hoc, intransparent and unpredictable arrangements for
which no evidence of usefulness has ever been produced.

We remain at your disposal to work constructively with you on this and
other issues of mutual concern.

EDRi letter in a PDF format (2.11.2012)