Controversial draft Framework Decision on Child Sexual Exploitation

By EDRi · October 7, 2009

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Deutsch: [Umstrittener Entwurf zum Rahmenbeschluss gegen die sexuelle Ausbeutung von Kindern |]

The Civil Liberties Committee of the European Parliament held its first
exchange of views on the controversial Proposal for a Framework Decision on
combatting the sexual abuse, sexual exploitation of children and child
pornography. The draft legislation includes an obligation to require ISPs to
“block” access to child pornography sites and attempts to harmonise the
approach of the 27 EU Member States to this issue. This new legislation
repeals and replaces an existing instrument from 2004, which failed to have
a significant impact on harmonisation in some of the key areas covered by
the legislation, such as the definition of “child pornography” and which was
also not fully implemented by all Member States.

In the meeting, the European Commission defended its proposal for mandatory
blocking on the simple basis that it will “prevent crime” because customers
will no longer be able to access commercial child pornography sites
directly. Fundamental issues such as whether this approach, with its various
technical limitations and practical inadequacies, would be proportionate to
the “solution” being offered were not addressed or acknowledged. The fact
that circumvention is possible was, however, mentioned. A Commission
official also made several obscure references to plans to take
“extraterritorial” action to have websites taken offline at source. These
statements appear to echo plans in the Commission Communication of June 2009
on “an area of freedom security and justice serving the citizen”
COM(2009)262 to create “mechanisms to revoke the IP addresses of criminal
ISPs and to facilitate rapid shutdown of websites outside Europe”.

The MEP in charge, Roberta Angelilli (EPP, Italy) was also responsible for a
report on the previous Framework Decision adopted by the Parliament earlier
this year. At that time, the Parliament rejected her attempt to propose
blocking as a solution for child pornography websites. In the previous
session of the Parliament, she was an ordinary member of one of the smallest
political groups in the Parliament, but she is now a Parliament
Vice-President and a member of the biggest political group. She was not
present for this first discussion and her substitute Salvatore Iacolino
(EPP, Italy) did not mention blocking.

EDRi distributed its position paper to the political groups before the
meeting. During the debate, issues raised in the EDRi position paper were
highlighted by some MEPs. In particular, Jan-Philipp Albrecht (Germany,
Greens) and Birgit Sippel (S&D, Germany) raised serious concerns regarding
the need to engage in effective international cooperation to remove websites
at source rather than leaving them online to be accessed via technical
circumvention measures or accessed directly in countries where they are not
blocked. On the other side of the argument, certain MEPs did not reflect on
the rights and wrongs of blocking, preferring instead to call for
“everything” to be done to protect children, on the unexplained assumption
that blocking would achieve this goal.

One key issue of controversy in the Impact Assessment is the question of
whether or not a legal basis for blocking is necessary in order for it to
comply with Article 10 of the European Convention on Human Rights. This is
significant because some countries that have already implemented blocking
have done so without a legal basis and rumours emerging from the Council
suggest that “self-regulation” is being discussed as an alternative to
mandatory blocking. The Commission document explains that Member States
should only consider legislation in the absence of “effective”
self-regulation (i.e. no legislation is needed). It then goes on to explain
that over-blocking is a concern and, in the absence of a blocking being
“prescribed by law”, “this measure risks to amount to a non-legitimate
interference with fundamental rights” (i.e. legislation may be needed).

Finally, the Impact Assessment argues that “as interpreted by the European
Court of Human Rights in Strasbourg, to respect fundamental rights such
interference needs to be in accordance with the law and constitute a
necessary measure in a democratic society for important interests, such as
the prevention of crime.Such measures must indeed be subject to law, or they
are illegal”.

EDRi position paper: Framework Decision on Child Sexual Exploitation
(Angelilli Report) (28.09.2009)

Impact assessment

(links to all EU languages)

Commission Communication on freedom, security and justice

(Contribution by Joe McNamee – EDRi )