November 4, 2011
European Parliament and the Council agreed on a new directive to combat sexual abuse and exploitation of children and child pornography. After a long debate a compromise concerning measures against child pornography on the Internet has been reached. While the EU institutions reached an agreement, the Council of Europe seems to have taken a different route.
According to the new directive child abusers and viewers of child sex images on the web will face tough penalties. The directive, among others, establishes minimum sanctions for about 20 criminal offences. For instance on-line “grooming” (“befriending children via the web with the intention of sexually abusing them”) will become a criminal offence across the EU, as well as child sex tourism, if the offence is committed on a Member State’s territory or by one of its nationals abroad.
In the case of child pornography on the Internet, the directive establishes far-reaching measures. The initial proposition put forward by the Commission has triggered a heated debate, both at the EU and national levels. The issue of blocking access to webpages had received much attention before the EU institutions agreed on the text of the directive. Initially Article 21 of the proposal read: “Member States shall take the necessary measures to obtain the blocking of access by Internet users in their territory to Internet pages containing or disseminating child pornography”. MEP’s however opposed this way of handling the issue and argued that blocking the access would only cover up the problem instead of dealing with it at its source. Similar questions have also been discussed at national levels (see for instance the debate that took place in Poland, which is described in detail on the website of a Polish think-tank Panoptykon).
As a result of this debate, a reasonable compromise has been reached. Now Article 25 requires Member States to ensure the “prompt removal of web pages containing or disseminating child pornography hosted in their territory”. Measures foreseen in the directive will require Member States to co-operate with third countries in order to obtain the removal of pages hosted outside the EU. Only if this proves ineffective Member States will continue to be able to block internet access to child pornography web pages in their territory.
While the EU managed to establish a compromise, at the Council of Europe it is still believed that obligatory blocking access to webpages containing child pornography is an effective measure to deal with the problem. In a report by Augustin Conde Bajen, which includes a draft resolution adopted unanimously by the Committee on 16 September 2011, it is stated that blocking should be a mandatory legal measure to fight child pornography. Moreover, the debate, which took place in the EU structures, is criticized.
In light of the entire discussion on whether blocking access to websites should be taken into consideration when fighting crime, which we have witnessed recently, it may surprise that the proposition to establish legal measures that would allow censorship on the Internet is still under consideration. One would hope that the arguments about the inefficiency of such measures, as well as the risk of creating a dangerous precedence (which, in short, can be summed up as: once a tool to censor the Internet is established, it can be used in other, less noble, circumstances) have been already widely acknowledged at the European level.
Zuzanna Warso, lawyer at Europe of Human Rights
Author : Europe of Human Rights