During the third interinstitutional negotiations (trilogues) on the revision of the directive on combating the sexual abuse and sexual exploitation of children (CSAM) on Tuesday 3 March, the European Parliament and the Council of the EU, under the aegis of the Cyprus Presidency, reached agreements in principle on the scope of the directive and on certain key legal definitions. The EU Council’s latest proposals are set out in a note dated 23 February, which Agence Europe has been able to view.
This reform modernises the existing 2011 directive by toughening penalties and reinforcing prevention. It aims to adapt the European legal framework to the digital age by broadening the definitions of offences to include those carried out online and as a result of the internet. This text is in line with the European Commission’s initial proposals, which emphasised, as early as 2024, the need to adapt criminal codes to avoid having to revise legislation with each technological leap forward (see EUROPE 13344/8).
New offences. Among the new provisions included in the directive is ‘sextortion, defined as “intentionally threatening a child with the disclosure of child sexual abuse material depicting that child (...) in order to obtain money, further child sexual abuse material, or any other form of remuneration or consideration in exchange”.
Among the punishable acts included in the note are forcing a child under the age of consent to “witness sexual activities” or “ sexual abuse”, even without having to participate.
Legal details. The co-legislators have clarified the notion of consent in relation to a person’s physical state. In its note, the EU Council states that “disability, by itself, does not automatically constitute an impossibility to consent to sexual relations”. On the other hand, abuse of disability, whether “mental, intellectual, sensory or physical impairments” to engage in sexual activity, is clearly a crime.
The definition of acts of penetration has also been refined to explicitly include vaginal, anal or oral penetration of a sexual nature with any bodily part or object, or oral penetration with a genital body part.
With regard to aggravating circumstances, the co-legislators are considering lists of mandatory or non-mandatory circumstances. These would include, in particular, breach of trust, the victim’s state of intoxication, the fact that the perpetrator passed themselves off as a minor, or that their act was motivated by any form of discrimination.
Child pornography content on the Internet. According to an EU official, the co-legislators also made progress on the classification of ‘deepfakes’ and content generated by means of artificial intelligence, which should be the subject of a specific offence at the end of the negotiations. The text also includes measures for anyone who gives money or promises to do so in order to access a livestream showing sexual abuse of children.
Over the coming months, several technical meetings will be held to finalise the remaining points with a view to the next trilogue, which is scheduled to take place in June. In any case, the Cyprus Presidency is determined “to conclude this important file during our term”. (Original version in French by Justine Manaud)