EU Council discusses cross-border removal orders to fight child pornography – EURACTIV.com

EU Council discusses cross-border removal orders to fight child pornography – EURACTIV.com

A new compromise text by the Czech EU Council presidency has expanded the original proposal for tackling online child sexual abuse material to include a mechanism for dealing with cross-border content removal.

In a newly added section, the regulation now includes provisions to cover cases where the relevant service providers are established in different member states to the one in which the victim filing the order is established. 

Also included in the text, dated 16 November and obtained by EURACTIV, are new stipulations on filing removal requests and the independence of the coordinating authorities overseeing them. 

The Commission’s proposal was released in May to place obligations on online service providers to detect, report and remove child sexual abuse material (CSAM) on their platforms, but it has spurred controversy over its privacy implications.

Cross-border removals

The compromise text’s fundamental change is adding a section covering the procedure for cross-border removal orders in what appears to be an attempt to prevent the formation of bottlenecks whereby a single national authority is responsible for most CSAM content in the EU.

The original proposal followed the country of establishment principle, namely giving the authority of the country where the service provider has its EU headquarters the capacity to remove or disable access to content found to count as CSAM.

By contrast, the new article provides for the possibility of authorities other than those of the country of the establishment to issue a removal order. 

In these cases, the text stipulates that the authority issuing the notice will be required to submit a copy to the coordinating authority of the member state where the service provider’s main establishment is or where its legal representative resides or is established. 

The service provider will be required to respond to the order, and the coordinating authority in the member state where it is established will have 72 hours to scrutinise the order and determine whether it is in violation of the regulation or infringes upon fundamental rights.

Service providers will have 48 hours in which to request such a review. 

If the coordinating authority determines that the order does violate the regulation or fundamental rights, it will have to adopt and communicate a reasoned opinion, and the order will no longer have any legal effect.

Hosting service providers will then be required to immediately reinstate the content or allow access to it once again. 

Independence

The requirements on member states for ensuring the independence of Coordinating Authorities have been condensed in this latest text.

The regulation previously set out a more detailed list of obligations on member states, such as ensuring that they are legally and functionally independent from other public authorities and are given a status enabling them to operate objectively and independently when enforcing the regulation, amongst others.

This wording has now been shortened and rephrased to give the countries more leeway on how to set up these authorities. The only requirement is that these authorities should be free from any direct or indirect external influence and not take instruction from any other public authority or private party. 

Redress and removal

The text also includes an amendment to the provisions on victims’ right to assistance and support for the removal of CSAM. 

The regulation requires service providers to assist people within the EU seeking to have specific items of CSAM depicting them removed or access to them disabled. To do so, individuals would have to submit a request via the Coordinating Authority in their member state.

Where the text previously noted that these requests needed to indicate the relevant items of CSAM, this latest compromise clarifies that the specific hosting service provider does not need to be indicated.

[Edited by Luca Bertuzzi/Zoran Radosavljevic]

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