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Toekomst Europees internetfilter bepaald begin februari

Niet alleen in Nederland zijn partijen druk met een internet filter op de toegang tot afbeeldingen van misbruik van kinderen te blokkeren, ook op Europees niveau gebeurt dat. In februari worden daarover belangrijke beslissingen genomen.

EDRI schrijft in het artikel Internet Blocking – Key Decisions to be made by 3 February 2011:

In the Council of Ministers, an informal agreement is planned for the Justice Council in December, while the MEP in charge in the Parliament will present her draft report on 10 January 2011 with an informal orientation vote just three weeks later.

In the Council, the current negotiating text reads as follows: "2. Where the removal of webpages containing or disseminating child pornography is not possible within a reasonable time, Member States shall take the necessary measures, including through non-legislative measures, to ensure that the blocking of access to webpages containing or disseminating child pornography is possible towards the Internet users in their territory. The blocking of access shall be subject to adequate safeguards, in particular to ensure that the blocking, taking into account technical characteristics, is limited to what is necessary, that users are informed of the reasons for the blocking and that content providers, as far as possible, are informed of the possibility of challenging it."

This text raises three interesting points. Firstly, blocking through non-legislative measures has already been described as illegal by the European Commission in the impact assessment it prepared to accompany the proposals. In that text, the Commission assessed extra-judicial blocking as follows: "More problematic may be the compliance with the requirement that the interference in this fundamental right must be "prescribed by law", which implies that a valid legal basis in domestic law must exist" (page 30) before coming to the conclusion that "such measures must indeed be subject to law, or they are illegal" (page 37). The illegality of this approach is quite clear from the European Convention on Human Rights, which states that "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary."

The second interesting point refers to the last lines of the draft text. It suggests that a legal obligation is necessary for Member States to take the step of contacting the alleged criminals, accused of publishing pictures of children being abused on the Internet, and politely informing them that their page has been blocked and giving them the opportunity to complain, if they so wish.

The final point is that Member States should do what they consider necessary, which means that, strictly speaking, this text places no obligations on anyone. Its only real purpose is to give Member States an excuse to introduce blocking, even via "self-regulatory" measures that are in breach of the European Convention on Human Rights and the Commission's own assessment of the legality of the measure.