EU: No mandatory Internet filtering against images of child abuse

By: Simon Columbus on 27 June 2011
Posted in Europe, Legislation

The European Commission, Council, and Parliament came to an agreement last week regarding controversial plans to mandate Internet filtering as a means to fight the circulation of child abuse images. The provisional compromise backs away from mandatory Internet filters that had initially been proposed by the Commissioner of Home Affairs, Cecilia Malmström.

As the digital civil rights organization EDRi reports, the new phrasing of the critical Article 21 of the proposal no longer includes an obligation to introduce Internet filters, although such measures are still allowed:

  1. Member States shall take the necessary measures to ensure the prompt removal of webpages containing or disseminating child pornography hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
  2. Member States may take measures to block access to webpages containing or disseminating child pornography towards the Internet users in their territory. These measures must be set by transparent procedures and provide adequate safeguards, in particular to ensure that the restriction is limited to what is necessary and proportionate, and that users are informed of the reason for the restriction. These safeguards shall also include the possibility of judicial redress.

The original proposal for the directive on combating the sexual abuse, sexual exploitation of children and child pornography included the provision that “Member States shall take the necessary measures to obtain the blocking of access by Internet users in their territory to Internet pages containing or disseminating child pornography.”

Several governments, including Germany, where a similar Internet filtering scheme was overturned after heavy criticism, had attempted to ban Internet filters altogether. However, EDRi writes that “as some large Member States already have blocking systems in place, the best compromise that was possible was an acknowledgement that Member States ‘may’ still block, subject to certain safeguards.”

The new proposal provides for higher levels of control than currently exist in several states “that at the moment have entirely lawless blocking”, notes EDRi, citing Sweden and Denmark as examples. While according to the explanatory recital, filtering can still be “based on various types of public action, such as legislative, non-legislative, judicial or other”, such measures will have to provide “an adequate level of legal security and predictability”, and must comply with the European Convention on Human Rights and European Charter of Fundamental Rights, both of which require a legal basis for restrictions on fundamental rights.

Ralf Bendrath, who works for MEP Jan Philipp Albrecht, notes on (in German) that “unfortunately, some security measures against excessive censoring wanted by the parliament were thrown out”. Member states that already apply Internet filters, such as Sweden and Denmark, will be able to continue to do so without providing a legal basis. However, Bendrath argues that the obligation to provide the possibility of judicial redress indirectly requires a legal basis.

MEP Albrecht (in German) himself sees the provisional compromise as a success for those who have propagated the approach “deleting instead of blocking” in the fight against images of child abuse. He claims that “with this, the original plan of Commissioner of Home Affairs to clear the way for Internet blocking on a European level and to force member states to take measures accordingly has failed”. He urges the EU member states to demand “an efficient combat against child abuse at the source” from third-party countries such as the US.

The proposal now needs to be approved by the Parliament's political groups before being voted upon in the Civil Liberties Committee in July and in a plenary session of the Parliament in September.