The fight against child sexual abuse online continues
The European Parliament, European Council and European Commission have agreed new temporary legislation on the voluntary detection measures available to online service providers. This allows providers to take action to prevent the dissemination of online child sexual abuse material and grooming on line.
Although still requiring final approval, the agreement means that the activities of detecting, removing and reporting illegal material that certain electronic service providers undertake can continue.
As of 21 December 2020 the activities that online service providers were undertaking to scan online communications for suspected child abuse material fell under the e-Privacy directive of 2002. The impact of this meant that it could now be illegal for them to continue doing something which they had previously been doing on a voluntary basis. The directive did not contain a clear and obvious legal basis for the voluntary processing of content or data for the purposes of detecting and removing child abuse material. This was as a result of the European Electronic Communications Code (EECC) which brought with it a modernised definition of electronic communications services. This definition encompasses 'number-independent interpersonal communications services' (“NI-ICS”), which includes messaging services such as the ones who have been scanning communications and reporting material to law enforcement authorities.
The e-Privacy directive ensures the confidentiality of communications and personal data in the electronic communications area and relies on the definition of electronic communications services in the Code. As a result, NI-ICS’s are now subject to the confidentiality rules of the e-Privacy Directive rather than those of the General Data Protection Regulation. In order to continue the scanning and processing of this data a specific derogation is needed for the services falling within the scope of the e-Privacy directive.
The European Commission proposed to amend the e-Privacy Directive and the agreement now reached provides for a derogation to articles 5(1) and 6(1). This will allow online service providers to continue to detect, remove and report child sexual abuse material and apply anti-grooming technologies.
The exemption was necessary as there are indications that the Covid-19 crisis has exacerbated the problem of child sexual abuse online. As a result of the pandemic, children are spending more time than before online, possibly unsupervised. Whilst this has allowed them to continue their education and stay in touch with their friends, it has also created an increased risk of children coming into contact with online predators. Further to this, with more offenders isolated at home, the demand for child sexual abuse material has increased which in turn leads to increased demand for new material, and therefore new abuses.
The provisional agreement reached is subject to approval by the European Council but once approved the temporary legislation will apply for a maximum of three years unless a more permanent solution to replace it is implemented before then.
The European Commission considers that the fight against child sexual abuse online requires clear mandatory obligations to detect and report child sexual abuse online to bring more clarity and certainty to the work of both law enforcement and online service providers to tackle online abuse.
The Commission has announced its intention to propose overarching legislation to tackle child sexual abuse online by the second quarter of 2021 so we should expect to hear more on this issue in the near future.
For more information, please contact Lauranne Nolan.