The Belgian Presidency of the EU Council still intends to achieve during its mandate an agreement of the EU Council on the proposal for a regulation on the removal of child sexual abuse material (CSAM) online and has presented a new approach that could represent a potential opening towards an agreement, two sources said on Tuesday 28 May (see EUROPE 12950/5).
On 24 May, Member States met in a working group to consider new ideas on detection orders for this material issued by the competent authorities to communication service providers.
This is the most controversial provision of the regulation in that it involves a form of surveillance of the content of private communications. These new options should be translated into a new draft compromise in the next few days.
They are based on three elements, according to one source. They would aim firstly to reduce the scope of these detection orders to only known and new video and photo material, but with a system, for new material, to avoid overburdening authorities with false positive results and a mechanism that would apply to the second hit.
The second element would be to involve the user by seeking a kind of consent for the application of detection orders. Messaging companies are expected to include a provision in their terms of use requiring the user to give consent to the detection of this material if a detection order is issued. If an agreement is reached, a sort of ‘scan’ of the material will be triggered before it is downloaded, says a source, adding that these avenues will have a number of technical variations.
This new approach by the Presidency got a mixed reception on 24 May and has not yet received any support. It may also fail to resolve the problem of countries that remain fundamentally opposed to any surveillance of the content of private communications and to detection orders, which always raise the issue of proportionality, as in the case of Germany.
Other countries, such as Spain, also consider that this would weaken the ambition of the text and reduce its effectiveness, but, according to a European diplomat, Spain could nevertheless accept this new direction in order to finalise an agreement. According to another source, these new leads represent a possible “opening”.
The Home Affairs Council, which will meet in Luxembourg on 13 June, is expected in any case to only take note of a progress report at this stage. The next working group is scheduled for 4 June. (Original version in French by Solenn Paulic)