Digital Civil Rights in Europe

Published in EDRi-gram 8.23

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…

“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:52009SC035…

Commission official explains the Commission’s research (7.09.2010)
http://www.youtube.com/watch?v=EpFpoXIdRQc

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-blokowan…

Civil Society Appeal (only in Polish, 29.11.2010)
http://panoptykon.org/sites/default/files/Panoptykon_List%20do%20premi…

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

(contribution by Joe McNamee – EDRi)

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