Negotiations between the Council of the EU and the European Parliament on the draft regulation on combating child sexual abuse material (CSAM) have become clearer since the compromise outlined at the end of June (see EUROPE 13899/23), without yet making it possible to overcome the latest disagreement over automated detection orders, according to a note dated 18 September which Agence Europe was able to consult.
A few days before the sixth trilogue, scheduled for 29 September, the discussions have above all made it possible to clarify an architecture based on four distinct mechanisms. The Irish Presidency of the EU Council, which took over the file from its Cyprus Presidency predecessor, presents them as possible elements of a compromise, which still has to be accepted by the co-legislators.
Public content. For publicly accessible content, the Presidency proposes providing for detection orders limited to known CSAM in order “to avoid a general monitoring obligation” and not to force online platforms to assess content before reporting it. The future ‘EU Centre on Child Sexual Abuse Protection’ could, for its part, carry out searches on its own initiative in that content.
A technical agreement has been found on this principle, including the possibility for national authorities to “delay the submission of notifications” from the ‘EU Centre’ to providers where these would risk interfering with investigations or prosecutions. The Presidency indicates that this agreement still has to be confirmed at the trilogue.
Private content. On the more sensitive issue of non-public content, such as private messaging services, it still wants to maintain platforms’ voluntary searches, in continuity with the derogation regime from the ePrivacy Directive (see EUROPE 13915/9). It is defending a system covering both known and new CSAM as well as the sexual solicitation of children (grooming), in order to maintain “the current level of reports” through the providers’ voluntary searches.
For its part, the European Parliament remains determined to limit automated detection to known material and to make those searches subject to a plan detailing the technologies used and the safeguards provided for, supervised by “national judicial or independent administrative authorities”. It also wants to oblige providers to use “the database of indicators provided by the EU Centre”.
Negotiators are also discussing the possibility of introducing detection orders for non-public content. The Presidency has proposed to target searches to “specific parts of a service or, where possible, to individual users”, rather than providing for general scanning.
This strand remains linked to the agreement to be found on the parameters and scope of voluntary searches, but the Presidency considers that targeting limited to users already identified would present “any added value” compared with the possibilities already offered by criminal law. Moreover, the EU Council wants any review or suspension mechanism to be designed “in a manner that does not deter providers” from carrying out own-initiative searches.
If no compromise guarantees effectiveness comparable to that of the current derogation regime, the Irish Presidency is asking Member States whether they would agree to exclude from the regulation searches and detection orders concerning non-public content. (Original version in French by Justine Manaud)