According to several sources, on Wednesday 5 November, the Member States decided to move forward on the new proposal put forward by the Danish Presidency of the Council of the EU on the removal of child pornography content from the Internet (see EUROPE 13742/7), following a discussion in the Committee of Permanent Representatives.
On 30 October, the Presidency decided to withdraw the compulsory injunctions for content providers and private messaging services to detect paedophile material, blocking any possibility of agreement between the EU27 since 2022.
While Copenhagen’s new approach, which calls for an agreement in December at the Home Affairs Council, has disappointed supporters such as Spain and France who advocate a firmer approach, it has potentially won over the countries most concerned about the impact of the regulation on privacy.
The Netherlands and Germany have been among the most reticent on these issues. The withdrawal of mandatory injunctions is therefore a “positive development”, according to a diplomat from one of these countries. But this does not yet constitute a “yes” to the proposal, as the Presidency’s next compromise – scheduled for next week – needs to be carefully analysed.
The new draft “removes most of the added value of the European Commission’s proposal, but there was no agreement on a more ambitious version”, explained another diplomatic source. However, some countries have chosen to move forward on this basis, as it “ensures the long-term future of voluntary detection of child pornography content”, for which the current legal basis expires in April 2026.
In a discussion note, the Presidency had also suggested maintaining all the relevant aspects of the proposal that had received sufficient support to date. These include an obligation imposed on providers to assess and mitigate the risks of sexual abuse of minors, with financial penalties for non-compliance, risk classification and a strong European Centre to support national authorities.
The Presidency concluded from the few speeches made on Wednesday that there was sufficient support to continue work on this basis.
After publishing a number of compromise texts since 1 July – notably imposing an obligation on high-risk content providers to detect known and new child pornography content on their services – the European Commission noted in mid-October that it did not have sufficient support to reach an agreement on a negotiating mandate with the European Parliament.
The Presidency had also judged that this lack of support only related to provisions pertaining to the establishment of obligations to detect, due to concerns linked to the protection of users' fundamental rights and cybersecurity.
“Doubts have also been expressed with regard to the availability of reliable and accurate technologies to detect CSAM”, explains the note.
The Presidency therefore proposed: - that the provisions regarding the establishment of detection obligations be deleted; - that the derogation from certain provisions of Directive 2002/58/EC for the purposes of combating online child sexual abuse (voluntary detection) be made permanent through an amendment of interim Regulation 2021/1232; - voluntary activity by providers under the interim settlement be incorporated as a possible mitigating measure and used as an element in the risk categorisation of services; - that, under a review clause, the European Commission be invited to assess the need for and feasibility of including detection obligations at a later stage, taking account of technological developments; - that the EU Centre for Preventing and Combating Child Sexual Abuse retains its essential functions.
Link to the note: https://aeur.eu/f/jal (Original version in French by Solenn Paulic)