The European Commission has attempted to justify to Member States, in a note of 16 May from its services, imposing orders on platforms to detect child sexual abuse material in interpersonal communications, as foreseen in its draft regulation on the removal of online child sexual abuse material proposed in May 2022. However, it had to acknowledge the degree of uncertainty surrounding this proposal.
The Legal Service of the Council of the EU has recently challenged these detection orders (see EUROPE 13176/3, 13182/10) as a serious limitation of fundamental rights and contrary to the Charter of Fundamental Rights.
The Member States will therefore consider these detection orders on 26 May in a discussion based on the Commission’s response.
In this note, the Commission tries to prove that its proposal respects the balance between fundamental rights and the need to tackle the crime of sharing or possession of online child sexual abuse material.
However, it acknowledges that it cannot answer with “absolute certainty” as to the compatibility of this regulation with the Charter of Fundamental Rights.
However, the Commission services conclude “that the proposed rules and the case law available to date, seen in their entirety and properly construed, provide no reasons to conclude that on this point the proposed Regulation is incompatible with the Charter”.
The Commission is trying to respond to the opinion of the Legal Service of the Council of the EU, which was based in particular on a judgment of the Court of Justice of the EU, known as ‘La Quadrature du Net', concerning data retention.
The Commission argues that the Court of Justice of the EU (CJEU) “has never expressed itself on measures of the kind at issue (detection orders). There is therefore necessarily a degree of uncertainty. Particularly in respect of complex and sensitive matters such as the present ones, no definitive and absolute conclusions can be drawn in either direction when it comes to compliance with the Charter”.
And, precisely because the CJEU has not yet ruled on the issue, “it is necessary to take a broad perspective”.
The Commission considers that La Quadrature du Net line of case law is in itself not decisive “insofar as that case law relates to particularly intrusive forms of processing other than retention. It should also be noted that this line of case law cannot be said to be consolidated yet”.
As the proposed Regulation is still under discussion, adjustments could also be made to address possible legal concerns regarding detection orders for interpersonal services. “Entirely excluding detection on interpersonal communications may, for example, help address certain possible legal risks on which the current debate focuses” but “this would likely also make much of the proposed Regulation devoid of purpose”, the Commission points out.
Moreover, without effective detection, many of the other proposed measures – such as reporting and removal obligations – also risk losing much of their practical significance.
The Commission, which also recalls that such detection orders are issued only as a “last resort” by the competent national court, also asks Member States to consider the concept of ‘quality of law’.
The “first key issue is whether the proposed rules on detection orders meet the requirements as to the ‘quality’ of the law, that is, whether the rules are sufficient clear, specific and complete to justify the conclusion that the limitation on the exercise of the fundamental rights at issue are ‘provided for by law’ within the meaning of Article 52(1) Charter. The Commission services are of the view that they are and, consequently, that any doubts raised in this respect are unfounded”.
For the Greens/EFA MEP, Patrick Breyer (German), the fact that “the authors of the proposal once again claim that it is in line with fundamental rights is a clear conflict of interest”.
Moreover, this note does not reject the opinions issued by the European Parliament’s Research Service or the EU Council’s Legal Service, which clearly reject the violations of the private communications of countless non-suspects.
The MEP also regrets that the Commission’s Legal Service does not otherwise “take responsibility for this mysterious document, so the expertise behind it is questionable”.
New compromise
The Swedish Presidency of the EU Council, for its part, has presented a new compromise for a working group on 26-27 May.
It removes the emergency reporting system for hosting service providers and interpersonal communication service providers in the event of an imminent threat to the life or safety of a child and clarifies the modalities of cross-border orders for the removal of child sexual abuse content or the delisting of sites.
Link to the Commission’s note: https://aeur.eu/f/6zs
Link to the compromise: https://aeur.eu/f/701 (Original version in French by Solenn Paulic)