Council text on web blocking – breaking the law to fight crime

By EDRi · December 15, 2010

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Deutsch: [Ratstext zu Netzsperren – Rechtsbruch für den Kampf gegen das Verbrechen |]

The Council of Justice Ministers adopted a text on web blocking at its
recent meeting in Brussels on 2-3 December 2010. The Belgian Presidency, for
domestic reasons, felt obliged to adopt a text during its term of office. As
a result, the outcome is a hastily cobbled together text that makes little
legal sense and whose main value is to finally betray the real meaning
behind the proposal.

The adopted text can be divided into two main parts:

1. “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.”

Under the UN Child Rights Convention, Member States are already under a
binding legal obligation to take all appropriate measures to prevent the
“exploitative use of children in pornographic performances and materials”.
If Member States do not feel that blocking is “necessary” to achieve this,
the Council’s wording would not create an obligation for them to suddenly
make a different analysis that would make blocking obligatory.

However, the text is very clear about the obligation to create an
infrastructure which is capable of implementing the blocking of web pages
(Member States shall (…) ensure that the blocking of access to webpages
(…) is possible (…) in their territory.)

The reference to “non-legislative” measures is particularly interesting
because blocking via “self-regulatory” mechanisms by Internet providers is
unquestionably illegal. It is illegal under:

a. The European Convention on Human Rights – Article 10 “The exercise of
these freedoms (…) may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law”
b. The European Commission’s own impact assessment – “Such measures must
indeed be subject to law, or they are illegal.”
c. The International Covenant on Civil and Political Rights. Article 19.3
“The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:”
d. The 2003 Interinstitutional Agreement on Better Lawmaking – Article 17:
“The Commission will ensure that any use of co-regulation or self-regulation
is always consistent with Community law (…) These mechanisms will not be
applicable where fundamental rights or important political options are at
stake or in situations where the rules must be applied in a uniform fashion
in all Member States.”

2. The second element of the agreement is also noteworthy. It requires that
the individuals accused of uploading depictions of serious crimes against
children are informed that their site is blocked and “as far as possible,
are informed of the possibility of challenging it.” Such an obligation would
only be necessary if it is assumed that there would be no investigation or
prosecution of the individuals that uploaded the site. In Belgium, this is
done by providing a fax number on the blocking page that will not be
available to the person who, by definition, will be not be in Belgium and
therefore not able to see the page.

Council text (26.11.2010)

Interinstitutional agreement on better law making (31.12.2003)

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

Convention on the Rights of the Child (20.11.1989)

European Convention on Human Rights

(Contribution by Joe McNamee – EDRi)