Internet blocking – key decisions to be made by 3 February 2011

This article is also available in:
Deutsch: [Netzsperren – Wichtige Vorentscheidung fällt am 3. Februar 2011 | http://www.unwatched.org/node/2389]

The legislative process on Internet blocking is about to move from almost
standstill to almost completed between now and the beginning of February. In
the Council of Ministers, an informal agreement is planned for the Justice
Council in December, while the MEP in charge in the Parliament will present
her draft report on 10 January 2011 with an informal orientation vote just
three weeks later.

Every civil society organisation that wants to stop web blocking and the
damage that this will do for child protection must focus all available
resources on the Civil Liberties Committee of the European Parliament
between now and early February. Afterwards, it will be too late. The risk of
damage to child protection is abundantly clear from the Working Document
prepared by the MEP in charge of the dossier, Roberta Angelilli (Italy). She
says: “We have to bear in mind that our priority is to eliminate these
images for public access as quick as possible.” The priority is not to
identify the children, not to investigate the criminals, but to avoid public
access via blocking, which does not even serve the purpose of stopping
deliberate access.

Bizarrely, Ms Angelilli also suggests that “the providers would be promptly
informed about their rights to appeal against the decision”. This assumes
that there would be no immediate investigation – having been accused of
having a website containing images of gross violations of children, the
suggestion is a polite notice to the alleged criminal that he may wish to
complain.

In the Parliament, MEPs remain divided but the argument that blocking is a
“complementary” measure, to be implemented with other measures (such as
deletion and prosecution), rather than instead of them, is successful with
many parliamentarians. The argument is working, despite the fact that there
is no evidence of this being the case in countries that already have
blocking.

In the Council, Germany and Romania are fighting hard for blocking to remain
optional for Member States. However France and Italy (coincidentally,
countries that also have blocking for gambling and intellectual property)
are campaigning for obligatory blocking with what one negotiator described
as “missionary fervour”. Most countries are remaining silent on the issue,
meaning that they are passively having blocking imposed on them by the
larger countries. The only large country to remain silent is Poland, and
this silence will be crucial for the success of mandatory blocking, if it is
maintained.

In the Council, the current negotiating text reads as follows:
“2. Where the removal of webpages containing or disseminating child
pornography is not possible within a reasonable time, Member States shall
take the necessary measures, including through non-legislative measures, to
ensure that the blocking of access to webpages containing or disseminating
child pornography is possible towards the Internet users in their territory.
The blocking of access shall be subject to adequate safeguards, in
particular to ensure that the blocking, taking into account technical
characteristics, is limited to what is necessary, that users are informed of
the reasons for the blocking and that content providers, as far as possible,
are informed of the possibility of challenging it.”

This text raises three interesting points. Firstly, blocking through
non-legislative measures has already been described as illegal by the
European Commission in the impact assessment it prepared to accompany the
proposals. In that text, the Commission assessed extra-judicial blocking as
follows: “More problematic may be the compliance with the requirement that
the interference in this fundamental right must be “prescribed by law”,
which implies that a valid legal basis in domestic law must exist” (page 30)
before coming to the conclusion that “such measures must indeed be subject
to law, or they are illegal” (page 37). The illegality of this approach is
quite clear from the European Convention on Human Rights, which states that
“the exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary.”

The second interesting point refers to the last lines of the draft text. It
suggests that a legal obligation is necessary for Member States to take the
step of contacting the alleged criminals, accused of publishing pictures of
children being abused on the Internet, and politely informing them that
their page has been blocked and giving them the opportunity to complain, if
they so wish.

The final point is that Member States should do what they consider
necessary, which means that, strictly speaking, this text places no
obligations on anyone. Its only real purpose is to give Member States an
excuse to introduce blocking, even via “self-regulatory” measures that are
in breach of the European Convention on Human Rights and the Commission’s
own assessment of the legality of the measure.

The civil society in Poland is pushing hard to demand that the government
have the courage to take a position. EDRi-member the Panoptykon Foundation,
along with representatives of the Kidprotect Foundation, the Modern Poland
Foundation, the Foundation for Free and Open Source Software and the
Interactive Advertising Bureau Poland appealed to the Prime Minister to
ensure that Polish representation to the European Council takes a critical
stance on the Child Exploitation Directive.

In their appeal, the groups demanded proper action against the abuse, rather
than the childish act of placing its hands before its eyes in the hope that
the monsters would disappear. Illegal content must be removed and not hidden
by the creation of a censorship infrastructure.

Working document – Roberta Angelilli, Rapporteur – Proposal for a Directive
of the European Parliament and of the Council on combating the sexual abuse,
sexual exploitation of children and child pornography
http://www.edri.org/files/angelilli_wd.pdf

Proposal for a Directive of the European Parliament and of the Council on
combating the sexual abuse, sexual exploitation of children and child
pornography, repealing Framework Decision 2004/68/JHA
http://www.europarl.europa.eu/meetdocs/2009_2014/documents/com/com_com%282010%290094_/com_com%282010%290094_en.pdf

“Impact assessment”: Accompanying document to the Proposal for a Council
Framework Decision on combating the sexual abuse, sexual exploitation of
children and child pornography, repealing Framework Decision 2004/68/JHA
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009SC0355:EN:NOT

Commission official explains the Commission’s research (7.09.2010)

Cybercriminals thank Commissioner Malmström
http://www.cybercriminalsociety.eu/index.php

We are writing to the Prime Minister: Do not to block the Internet! (only in
Polish, 30.11.2010)
http://www.panoptykon.org/content/piszemy-do-premiera-nie-dla-blokowania-internetu

Civil Society Appeal (only in Polish, 29.11.2010)
http://panoptykon.org/sites/default/files/Panoptykon_List%20do%20premiera%20blokowanie_29.11.2010.pdf

Council draft negotiating text (26.11.2010)
http://www.statewatch.org/news/2010/nov/eu-council-sexual-exploitation-16958-10.pdf

(contribution by Joe McNamee – EDRi)