ENDitorial: Net child abuse: Member States fiercely defend their right to do nothing

By EDRi · March 9, 2011

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Deutsch: [ENDitorial: Kindesmissbrauch im Internet – Mitgliedsstaaten verteidigen verbissen ihr Recht auf Untätigkeit |]

The first Council Working Group meeting on the proposed European Directive
on Child Exploitation produced near unanimity among the Member States that
their right to do nothing must be defended. As a result, the Council will
enter the negotiations with the Parliament defending the “General Approach”
text that it adopted in December 2010. Only Germany and Romania spoke out in
favour of making an effort to find a more balanced text and a compromise
with the European Parliament.

The Council text removes the obligation on Member States to impose blocking
and replaces it with the statement that blocking must be “possible” which,
of course, it is, regardless of whether it is used or not. Starting from a
position of doing nothing, it then gives Member States the power to do less,
namely to introduce blocking by “non-legislative” means – i.e. by
outsourcing the problem to Internet providers, who cannot prosecute the
crime and can only take cosmetic measures. The text then concludes with weak
“safeguards” such as unspecified “necessity” and information to the end
users and “content providers” that the blocking is happening.

The explanatory “recital” of the Council text reinforces the meaninglessness
of the text by offering everybody the right to do pretty much everything.
For example, it simultaneously proposes “stimulating (sic) Internet
Service Providers on a voluntary basis to develop codes of conduct and
guidelines for blocking access” to illegal material and explaining that such
developments must “adhere to existing legal and judicial procedures and
comply with the European Convention on Human Rights”. In other words,
blocking must be (but may not be) prescribed by law and implemented
following judicial decisions.

The text on deletion of websites is no better – obliging Member States to
delete (although not necessarily by law, which would imply that law
enforcement authorities might have to get involved) illegal material on
their territories and suggests the legally meaningless obligation to
“endeavour” to have the websites deleted when they are hosted abroad.

It should be stressed, of course, that Member States do take varying degrees
of action with regard to online child abuse. This determination to ensure
that the Directive maintains the right to do nothing does not mean that that
they will do nothing. Some Member States are very active, such as the German
initiatives to have websites abroad deleted and investigated, while others
are not.

By contrast to the confusing and contradictory nature of the Council text,
the European Parliament seeks to achieve two clear and concrete
goals – placing the emphasis on addressing crimes against children and
establishing a harmonised approach to restrictions on the right to
communication. While far from perfect and still too open to excessive
implementation, the text is consistent and addresses both points in a
coherent way.

Focus on addressing the crimes against children:

– Removal at source: This measure addresses the existence of illegal
material, avoiding all risks of re-victimisation, while allowing Internet
providers to keep records of content to facilitate criminal investigation
and victim identification;
– International cooperation: It is particularly important to remove the
systemic problems in communication and cooperation with third countries’
authorities that lead to illegal content in websites hosted abroad not being
dealt with expeditiously. This cooperation could include, for example, the
setting up of single points of contact for competent authorities abroad;
– Annual reporting on removal activities: This will help identify individual
successes and failures of Member States at a national and international
level, to disseminate best practices and ensure maximum efforts to prosecute
criminals and identify victims.

Harmonised respect for existing European legal obligations:

– The least restrictive alternative is prioritised, namely, the deletion of
websites. Only when this is impossible can a more restrictive method (such
as blocking) be considered.
– In line with the European Convention on Human Rights, alternative measures
to removal at source (such as blocking) must be “necessary” (i.e., the
measure must be effective and no other measure can be reasonably available
taking into account technical and economic feasibility).
– Respecting existing case law of the European Court of Human Rights,
restrictions must be imposed in a predictable (according to law),
transparent (i.e., the measure should be based on relevant factors or
sufficient evidence) and proportionate (i.e., the negative effects of a
measure should be counter-balanced by its benefits in terms of a legitimate
public policy objective) manner.

Over the next few months, the European Parliament will attempt to negotiate
a text with the Member States in the Council, under the watchful eye of the
Commission. The first such meeting will be on 16 March, the second meeting
is on 31st March and the third one will be on an as yet undefined date in
April. To support the Parliament’s position, simply call or e-mail members
of the European Parliament Civil Liberties Committee to heap praise on their
good work so far. More information on our campaign page below.

Campaign page

EDRi summary of Parliament text:

Council and Parliament texts:

EDRi blocking booklet:

EDRi Self-Regulation study:

(contribution by Joe McNamee – EDRi)