Digital Civil Rights in Europe

Article published in EDRi-gram 8.24.
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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.”

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