Protect Children's Consultation to the European Commission on fighting child sexual abuse
Suojellaan Lapsia, Protect Children ry. Consultation to the European Commission on: Fighting child sexual abuse: detection, removal and reporting of illegal content online
Protect Children recently gave a consultation to the European Commission on the Proposal for a regulation laying down rules to prevent and combat child sexual abuse. The proposed legislation suggests several important features, including requiring online service providers (OSPs) to conduct risk assessments and making the detection, reporting, and swift removal of child sexual abuse material (CSAM) mandatory on high-risk platforms through detection orders.
In the statement, Protect Children underlined the significance and great necessity of the proposal to ensure the realisation of the rights of the child, while recognising the impact that the legislation could have on the enjoyment of other fundamental rights, particularly the rights to privacy and protection of personal data. In discussions related to developing greater safeguards for children online, it is unfortunate how these rights are most commonly weighed against the fundamental rights of children to be protected from violence. What many critics of the proposal seem to not be considering is that many major companies are already using technologies to detect CSAM and illegal conduct on their platforms and have been doing so for years without a strong legislation aimed specifically at regulating the conduct.
Furthermore, the proposed positive duty to perform risk assessments to identify potential significant risks on platforms constitutes an important way of promoting safety by design. Increasingly implementing safety by design could in the long run help prevent scenarios where interferences to the rights to privacy and personal data protection are necessary through detection orders. Rather than disproportionally infringing on privacy rights, the proposed legislation would in reality introduce meaningful safeguards and measures to protect these rights in the process.
While finding a balance between fundamental rights is never an easy task, Protect Children ultimately found that the proposed legislation had carefully evaluated and applied the principle of proportionality. In the statement, Protect Children proposed three key themes to be carefully considered in the development and possible implementation of the proposed legislation, so that it can continue to respect the balance between all fundamental rights at play and further limit any negative interferences with other rights, namely by ensuring increased transparency, efficiency and safeguarding. Read more about these points below.
The legislation must require transparency of measures taken by OSPs, and technologies used to detect CSAM and grooming.
In addition to the already proposed transparency measures, Protect Children encourages a requirement to provide information on what technology is used, its error rates (instances where conduct/content is flagged incorrectly), actions taken in response to erroneous reports and the amount of illegal content or conduct detected on the platform during a specific period. This information shall be easily accessible for users of the service and the general public.
Protect Children encourages transparency on the risk assessments taken by OSPs, and if a detection order is issued, what impact it has had on the safety of their services, and how they will in the future develop their services to prevent further risks.
Transparency should also be ensured for the conduct of courts or appointed independent authorities issuing detection orders, including information on how many detection orders are issued in a specific amount of time, amount of time taken to issue a detection order following a request as well as on the reasonings behind the issuing (e.g., how the fair balance between rights was considered).
We also encourage great transparency in the conduct of the proposed EU Centre, which would include information on how many reports are assessed, in which timeframe, origin of the reports and error rates.
Improvements to the efficiency of detection, reporting and takedown of CSAM are necessary, and to do so, it is indispensable to implement stronger regulations for the conduct not only of those detecting the material but also of those receiving the reports.
The necessary funds and resources to effectively operate the proposed EU Centre must be ensured well in advance to be able to handle the probable explosive increase in reports.
If a significant risk to children’s safety is found on a platform, efficiency shall be secured in the conduct of the courts and independent authorities issuing detection orders, so that any unnecessary delays can be avoided.
Extensive safeguarding is fundamental to ensure the balance between rights.
The right to redress for both companies and individuals is fundamental and its implementation in practice must be ensured.
The proposed legislation should more clearly define its scope as it relates to end-to-end encrypted (E2EE) platforms. As there currently exists no technology which can detect CSAM or conduct suggesting grooming on E2EE platforms without breaking encryption, requiring detection indiscriminately would implicate that OSPs could no longer be able to offer E2EE at all, in case they were to be issued a detection order. Therefore, the scope of the proposed legislation must be carefully considered and cannot rely on the sole possibility of a technology with such capabilities being developed, as there are no assurances of when that would happen. Defining the scope would also help clarify concerns related to it.