On Friday 13 October, the representatives of the Member States discussed the new proposals put forward by the Spanish Presidency of the Council of the EU and the chances of reaching a partial agreement on 19 October in Luxembourg on the regulation on the removal of child sexual abuse material (CSAM), at the ‘Home Affairs’ Council, but have not yet managed to reach agreement. Several countries have asked for more time and a new text will be submitted next week at a new preparatory meeting, according to a source.
Based on the observation made in mid-September that it did not have sufficient support for an agreement, the Spanish Presidency submitted a note, dated 10 October, suggesting certain modifications and, firstly, reducing the scope of the orders for the detection of child sexual abuse material to material that already existed and was known about, at least initially.
These detection orders, which involve the monitoring of private communications by platforms using the technology of their choice, are one of the most controversial points, with Germany, for example, calling for them to be removed from a partial agreement and dealt with at a later stage. However, this is not the Presidency’s preferred option.
In this memo dated 10 October, published by the German media outlet Netzpolitik, the Presidency proposes limiting the scope of detection orders to known CSAMs for the time being.
The relevant provisions relating to detection orders for new cases of CSAM and child solicitation should only begin to apply in the future, once it has been established that detection technologies are sufficiently reliable and accurate.
However, the new CSAMs and the solicitation of children would remain covered by the provisions of the regulation relating to preventive measures.
In practical terms, the Presidency believes that two mechanisms would make it possible to achieve this objective, it writes: an activation clause and a review clause.
As part of a mechanism linked to an activation clause, the future EU Centre would be required to monitor and contribute to technological developments and to carry out a technical assessment of the reliability and accuracy of technologies for detecting new child sexual abuse and/or solicitation material within 2 years.
On the basis of the EU Centre’s assessment, the Commission would then propose an implementing act to lay down detailed rules for the application of orders for the detection of new material and/or the solicitation of children. It would be up to the Council to adopt this implementing act.
In the context of a review clause, the Commission would be invited to assess whether the inclusion of new CSAMs and the solicitation of children should be included in the scope of detection orders. The Commission could then make a new legislative proposal.
While this is a major concern for some countries, the text still suggests keeping encrypted material within the scope of the regulation.
Link to note dated 10 October: https://aeur.eu/f/91p (Original version in French by Solenn Paulic)