It’s always good to start a blog with a direct quotation from the Rolling Stones, so here goes: it’s all over now.
What we used to refer to as a proposal for a Directive on combatting child sexual abuse, sexual exploitation of children and child pornography is now a finished item. Well more or less. It went through the European Parliament in Strasbourg earlier today. Strictly-speaking it has to go to the EU’s Council of Ministers for sign off but since it is in the same form that was previously agreed by the Council there seems little possibility of any further alteration.
Transposing comes next
I understand that once the Council of Ministers has done its thing, expected next month, we can properly refer to the Directive as being European law although, in practice, it will not mean anything in any given national jurisdiction until it has been “transposed” i.e. incorporated into local law through whatever procedures they use.
The text voted through by the Parliament today was agreed by all the relevant parties back in July but because of needing to resolve some issues concerning “correlation tables”: we had to wait until today for the formal business to go through in plenary session.
Valuable new instrument
After a great deal of hullaballoo we now have a genuinely valuable legal instrument which will help improve the position of children across the entire EU. A new threshold has been established. It is a landmark piece of legislation. There is no doubt about that.
Roberta Angelilli, Chair of the LIBE Committee of the European Parliament, and the many MEPs who showed leadership by getting behind her and the draft, deserve a big round of applause, and probably a long holiday! Commissioner Malmström and her staff, together with the Polish and Hungarian Presidencies, also deserve a great deal of credit for helping to pilot this complex set of ideas through the still comparatively new procedures of the post-Lisbon European Union.
Some countries will have relatively little to do to bring themselves into line with all of the provisions of the Directive but others have a big job ahead. For them I suppose it is anything but all over now. It is the beginning of a lot of hard work and they have a maximum of two years to deliver.
The EU has a common definition of a child: anyone below the age of 18. The Directive does not attempt to harmonize the laws on the age of consent to sexual activity but it does, for example, make 18 the EU-wide baseline for participation in pornography. The UK adopted that standard in the Sexual Offences Act, 2003. We will have an EU-wide law on grooming, another major breakthrough. The UK also took care of that in the 2003 Act.
The Directive specifies minimum penalties for about 20 named criminal offences. There is the beginnings of a framework for developing a sexual offences register which would be able to work on a transnational basis. Important provisions were made in relation to assistance and support for victims of child sexual offences, and in relation to their position during or involving criminal investigations or proceedings. Specific clauses were included on advertising sex tourism, on preventative and intervention programmes of different kinds and last, but by no means least, there was Article 21: measures against websites containing or disseminating child pornography.
Article 21: mandatory deletion at source
When compared with many other parts of the Directive the amount of attention given to Article 21, or rather one part of it, was hugely disproportionate. Having said that Article 21 is definitely a triumph for child protection.
Under the first part of the Article it is now mandatory for every Member State to initiate measures which will ensure
... the prompt removal of webpages containing or disseminating child pornography hosted in their territory and to endeavour to obtain the removal of such pages hosted outside of their territory.
Most EU Member States had already put things in place to do this but up until now it was discretionary. Today it is compulsory so no longer depends on the potentially reversible goodwill of a range of actors. Deletion has been embedded in law. That strengthens it and underlines its importance.
Blocking is in but discretionary
The second part of Article 21 addressed blocking. This was the bit which undeservedly hogged the limelight.
Blocking entails creating and distributing to relevant companies a list of web addresses known to contain child abuse images. As soon as the images have been deleted on the remote server the address comes off the list. Until that point the operation of the list renders the address and hence the illegal images inaccessible to the great majority of internet users on that service who do not have the technical knowledge to find a work around or an alternative source.
Blocking was nobody’s preferred option. Deletion at source is the best answer. Always. The argument over blocking was simply about what view you took where the material stayed on the remote server for longer than was reasonable.
The children’s organizations lobbied for blocking to be mandatory. It won’t be, at least not by virtue of the Directive. In Italy it is obligatory because the Italian Parliament enacted a law making it so. The EU Directive simply makes blocking discretionary, which is the status quo. However, by putting blocking into the Directive, even as a discretionary measure, the EU has given it clear legal status, conferring a legitimacy which perhaps, hitherto in some quarters, it lacked. There are conditions attached to how blocking might be carried out but these are all perfectly reasonable.
Apart from Italy seven or eight EU Member States are already doing blocking, but on a voluntary basis. I cannot think of an important company that operates online which isn’t also engaged in blocking child abuse web sites. This was an argument more about shadows than substance. We will watch to see which other countries and additional companies start to engage in blocking, and which don’t, but (I hope) the argument is now finished for the foreseeable future at EU level. It generated a great deal more heat than light.
As it becomes harder to propagate child abuse images using the web other technical solutions for other online environments will be of increasing importance but the need to have tools to deal with websites containing child abuse images is unlikely ever to go away.
Trade and aid
A good proposal which was not in the original draft but popped in from nowhere in midflight failed to make it into the final cut. This concerned the Commission’s ability to use its power when negotiating trade or aid treaties to require recalcitrant countries outside the EU to improve the speed of deleting child abuse images on servers in their jurisdiction following notification by an EU hotline. However, I am reliably informed that the Commission has this power anyway so this is something we might still see when and if it is necessary. I know when I discussed it with representatives of some countries with a less than perfect record they got very edgy. As ever, money talks.
Highly political process
We are a great deal wiser about the nature of the process for getting something through the European Institutions. It is a highly political process. Being right is not enough. Truth, justice and beauty will not always necessarily win through. You have to convince others and bring them along with you. Parts of the Commission need to sharpen up their act and evince some level of understanding of this dimension. Having a battle plan in place and your allies ready before you make the first heroic charge often helps.
Grand sounding names
Infinitesimally small groups no one has ever heard of can adopt grand sounding names, get money to fund or people to help with their operations from who knows where (check out the meaning of “revolving doors”, otherwise known as pantouflage). The media will home in on whoever has the loudest voice. They don’t always read the small print.
We have all learned a lot, not least in relation to the importance of being Johnnie on the spot i.e. of having a physical presence in Brussels or in Strasbourg, always being available to deal with a journalist’s or an MEP’s or a civil servant’s enquiry face to face.
Lobbyists can help but…
This is not a beef against lobbyists or single issue campaigns. Lobbyists and campaigners can help the democratic process in all kinds of ways, for example by ensuring that all the facts are assembled and properly presented, that civil servants, Commissioners and MEPs are fully briefed about every angle. This is partly what eNACSO and CHIS does, but we are doing it, not so much on a shoestring but on half of a sliver of a quarter of a single strand of thread, often from hundreds of miles away. We were Johnnie hardly ever on the spot.
We need to up our game. Substantially.