European Commission proposes Net blocking and defends illegal activity

By EDRi · April 7, 2010

This article is also available in:
Deutsch: [Europäische Kommission schlägt Netzsperren vor und verteidigt rechtswidrige Handlungen |]

On 29 March 2010, the European Commission re-launched its initiative on
child exploitation. This initiative was originally launched in March 2009 as
a “Framework Decision”, but was withdrawn due to the entry into force of the
Lisbon Treaty.

With regard to Internet blocking, there are two crucial differences between
the new proposal and the one launched last year. Both changes were made in
order to try to reduce the opposition to the proposal to introduce EU-wide
Internet blocking, thereby creating the basis for a continent-wide
censorship infrastructure.

Firstly, when the Commission launched its original proposal, the blocking
measures would have required laws to be introduced in the Member States (as
blocking would have been by judicial or police order). This is necessary in
order for the measure to have any hope of being in compliance with Article
10 of the European Convention on Human Rights which states that “the
exercise of these freedoms, (…) may be subject to such
formalities, (…) as are prescribed by law.” This need for a legal basis
was confirmed in the otherwise rather empty impact assessment. “Such
measures must indeed be subject to law, or they are illegal.” On
Commissioner Malmström’s blog, her spokesperson repeatedly gives a
preference for “voluntary” blocking.

In the Council of Ministers, Member States such as Sweden and the United
Kingdom that already have “self-regulatory” “voluntary” blocking opposed
this measure as they did not want to introduce laws.

As a result, the European Commission amended its proposal to simply require
“measures” to be taken to bring about blocking – thereby avoiding the
opposition of the countries who currently carry out blocking without a legal
basis and facilitating the ongoing breach of Article 10 of the European
Convention on Human Rights. As one of the first proposals of the new
Commission – the Commission that will take the historical step of accession
to the European Convention on Human Rights – this is a profoundly,
crushingly disappointing, cynical and, above all, illiberal, move.

The second change was to create a vague and therefore legally unenforceable
“obligation” on Member States to take the “necessary measures” to have the
websites in question removed from the Internet. This measure duplicates a
range of existing “binding” international obligations, such as those
provided for in Article 34 of the UN Child Rights Convention. Would another
vague and unenforceable obligation on Member States achieve anything? Well,
not according to the European Commission, which argued (in its “impact
assessment” of this proposal) that a Directive is necessary due to the lack
of a ” vigorous monitoring mechanism” in the Council of Europe Convention on
child exploitation. This new text does, however, permit the Commission to
argue that it is not promoting blocking (with its specific obligation) ahead
of deletion of sites (with its vague and unenforceable obligation) but is
working on both measures simultaneously.

Proposal for a Directive on combating the sexual abuse, sexual exploitation
of children and child pornography, repealing Framework Decision 2004/68/JHA

Impact assessment (25.03.2009)

Commissioner Malmström’s blog (in Swedish and English) on this issue

Ett slag för barnens rättigheter

MOGiS (abuse survivors against internet blocking): Remove, don’t block! –
Act, and don’t look away!

(Contribution by Joe McNamee – EDRi)