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ECPAT statement on the Proposal for a Regulation in the framework of the EU strategy for a more effective fight against child sexual abuse

Posted on Dec 22, 2020

In June 2020, EU Commissioner Johansson announced the EU would develop a new strategy to combat child sexual abuse. In her speech, the Commissioner made clear the strategy would address abuse in both the online and offline worlds. In July an elaboration of the announcement appeared in the form of a Communication: “EU strategy for a more effective fight against child sexual abuse”.

ECPAT International commends the approach outlined in the Communication. A strategy to combat child sexual exploitation and abuse online must correspond and connect with an offline strategy. They should be mutually reinforcing. That said, in the remainder of this note we will focus on specific aspects of the online dimensions of the challenge.

In December, the EU Commission announced it was conducting an inception impact assessment in respect of a proposed new Regulation on “ the detection, removal and reporting of child sexual abuse online and establishing the EU Centre to prevent and counter child sexual abuse”. Comments that might help shape or guide the impact assessment were invited by 30th December. These are submitted below.

Data indicating the scale of parts of the challenge are reproduced in Section A of the Commission’s December announcement. These data have since been supplemented and expanded by the US National Center for Missing and Exploitation Children (NCMEC).

The fact that there is to be a Regulation is highly significant. This means an EU-wide set of rules will be developed which, ordinarily, will be applied uniformly in every Member State.

Section D of the Commission’s December announcement reveals that following this initial call for comments on the inception impact assessment there will be a further 12-week period of consultation in respect of any substantive measures, which may emerge. Such consultations will be open to the general public and also be targeted at specific stakeholders.

A significant societal problem

Prevalence studies have established that child sexual exploitation and abuse takes place on a disturbingly large scale, including in online environments. No nation, religious, cultural or socio-economic group is exempt although with the increased availability of fast internet connections in many more parts of the world, via live-streaming, there appears to be a growth in the levels of online sexual exploitation and abuse of children from poorer and disadvantaged communities, particularly though not exclusively in lower-income countries.

Two types of problem

Picking up on the themes and objectives outlined in the section of the announcement, which discusses likely social impacts, this note focuses on two broad categories of behaviour, which manifest themselves online. One is concerned with the production and distribution of depictions of child sexual abuse, typically in the form of images, either still pictures or videos. The other is concerned with sexual solicitation, often referred to as “grooming”.

The role of a new European Centre

In her June speech, Commissioner Johansson referenced NCMEC, the Canadian Centre for Child Protection and the Australian Centre to Counter Child Exploitation as driving forces in protecting children in the online environment. She described them as being examples and important allies, going on to say

“Europe must scale up the fight. We need a European Centre to prevent and counter child sexual abuse and to support victims.”

After 1st January 2021, the UK’s Internet Watch Foundation will need to be added to the list. It has considerable expertise and experience of operating in multiple jurisdictions in all parts of the world. This has been gained in several ways, not least through the operation of its reporting portal.

The Centre’s functions will include promoting initiatives to improve victim support, law enforcement and prevention. This must be against a wider background of support for children’s rights. Legislation and regulations that may be overseen by the Centre have to prioritise these rights.

The logic of a Regulation

Like the internet itself, the current methods and arrangements for addressing online child sexual abuse have grown up on an ad hoc basis, often driven by specific technologies developed at a particular time by individual companies or organisations. This is not surprising given that self-regulation was the dominant regime in all the liberal democracies. In like manner different national and international law enforcement agencies developed different systems and standards.

In section 1.1 of the Communication referred to above, the Commission noted the poor level of implementation arising from the adoption of Directive 2011/92. Infringement proceedings are underway in respect of almost every EU Member State. A Regulation changes that scenario dramatically. Member States will have to follow an identical set of rules. However, this carries with it a certain inevitable logic, the logic of harmonisation and interoperability. The Centre could be the key catalyst and vehicle which will help deliver on both counts.

Against a background of fully respecting existing privacy laws and international agreements, in the context of the legislative initiative represented by the publication of a proposal for a new Digital Services Act and the Commission’s declared intention to establish a new strategy for children’s rights, the new Centre could play an enormously important part in strengthening the global effort to combat online child sexual abuse. ECPAT International very much looks forward to working with the Centre on this hugely important project.

The legislative options

Reflecting on the legislative options outlined by the European Commission in the inception impact assessment, ECPAT International would like to emphasise the importance of developing legislation that protects children from all forms of sexual exploitation and abuse, whether relating to digital content (images and videos) or grooming via messages or text. The Centre could play a crucial role in helping to ensure this.

While acknowledging the importance of establishing and maintaining a clear legal basis for all work in this area Option 1 essentially represents a continuation of a failed status quo. Proactivity would be voluntary not mandatory. Option 2 would be an improvement but nevertheless, the mandatory provisions would be limited only to reporting and deleting already known child sexual abuse images. Taking other steps to detect material which is likely to contain child sexual abuse images or taking steps to detect and prevent grooming behaviour would continue to be voluntary.

In addition to establishing a clear legal basis for all work in this area Option 3 would create a binding obligation on relevant service providers to detect, report and remove already known material as well as material which is likely to contain child sexual abuse images. It would also require companies within scope to take steps to detect and prevent grooming behaviour. Similar tools are also used to detect self-harm and suicide-related content and behaviours. For these reasons, ECPAT International favours Option 3.

Finally, in whatever Option is adopted it should be made clear that, where a company deploys end to end encryption, they will nevertheless still be required to demonstrate how they discharge their obligations to protect children. Inevitably this will raise questions of transparency and accountability.