A partial general approach by the Spanish Presidency, dated 10 October and seen by Euractiv, suggests limiting the scope of the detection orders in the regulation aiming to detect and remove online child sexual abuse material (CSAM).
The proposed regulation aims to prevent and combat online child sexual abuse material, making it a requirement for digital platforms in the EU to detect and report such material.
Digital associations have been voicing concerns that scanning such material would result in the breaking of encryption and privacy violations, while child protection organisations think that this is a crucial step in preventing abuse.
The Spanish Presidency of the Council of the European Union, which took over at the helm of the rotating presidency of the EU Council of Ministers on 1 July, suggests limiting the scope of CSAM to known CSAM, at least “for the time being” in a new partial general approach. Known CSAM refers to materials already spread on the internet, while unknown refers to those that have not been detected yet.
A partial general approach is a progress report on a file, while a (final) general approach would be adopted by the Council to give the Parliament an idea of its position on the Commission’s legislative proposal.
The suggestion is due to the fact that the Law Enforcement Working Party (LEWP) did not receive “sufficient support” from delegations, as concluded on 14 September, about the detection orders’ scope, also raising concerns about proportionality. Detection orders would be issued to give the green light to the detection of CSAM on platforms.
Once it has been “established that the detection technologies are sufficiently reliable and accurate”, provisions relating to new CSAM and grooming can apply as well. These would fall under preventative measures.
Activation and review clauses
Under the activation clause, in order to detect new CSAM and grooming, the EU Centre, a central hub of expertise to help fight CSAM, would have to “monitor and contribute to technological developments and to carry out a technical assessment of the reliability and accuracy of technologies”, the text reads.
Based on this assessment, the European Commission would propose an implementing act to help with the process of the detection orders’ process for grooming and new material.
Implementing acts are non-legislative acts – their role is “to create uniform conditions for the implementation of the legislative act”. They can have individual or general applications.
Normally, adopting an implementing act is done by the Commission, however, the Spanish Presidency suggests that “given the significant implications of such widening of the scope of detection orders”, the task could be given to the Council.
Under the review clause, the Commission should have to assess whether including new CSAM and the solicitation of children should be part of the detection orders’ scope. The Commission would have to take into account “in particular the reliability and accuracy of the detection technologies available on the market”.
Just like in the case of the activation clause, the EU Centre should support the Commission by monitoring technological developments.
According to the partial general approach, this could lead to a legislative proposal by the Commission. After that, the co-legislators would decide whether the scope of the detection orders should be expanded or not.
If the scope were to be limited, preventive and mitigating measures of the detection orders would still need to be strengthened “in order to avoid a gap in the protection of children”.
Combining approaches
The Presidency believes, based on discussion with the Permanent Representatives Committee (COREPER), that the two approaches could be combined and so access delegations’ concerns.
So, the partial general approach reads that regarding new material, an activations clause should apply, also including safeguards, while regarding grooming, a review clause should be applied.
Despite the never-ending controversy around encryption, the text adds that encrypted material should remain within the scope of detection as well.
Moreover, the Presidency says that the final solution should enable the current voluntary detection of online child sexual abuse material and grooming. This refers to the interim regulation, which is a temporary regulation allowing the voluntary detection of CSAM, in place until 3 August 2024.
What’s next?
The Spanish Presidency now invites the COREPER to express whether they support the suggestions or not. COREPER II will discuss the file on Friday morning (13 October). Depending on the meeting, the draft law could go on to be approved by the Justice and Home Affairs (JHA) Council, likely next Thursday (19 October).
Euractiv also learned this week that the 26 October vote on the proposal in the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), which leads the file, may be a too ambitious date, as there is still much left to cover.
[Edited by Nathalie Weatherald]
