The Portuguese presidency of the Council of the European Union wants to quickly conclude an agreement with the European Parliament on the provisions of the EU law on privacy in electronic communications to combat child sexual abuse on the internet.
To try to unblock the current deadlock, and given the “fundamentally different” positions of the two institutions on the draft regulation aimed at a temporary waiver of certain provisions of the directive on privacy and electronic communications, the Minister of Justice and President-in-Office of the EU Council of Justice, Francisca Van Dunem, has written to the European Parliament (EP) to intensify political negotiations, with a view to a compromise that she considers urgent.
In her letter, sent on Monday to the Chair of the EP Committee on Civil Liberties, Justice and Home Affairs, Juan Fernado López Aguilar, and to which Lusa has had access, Van Dunem starts by stressing that the proposal for a temporary waiver from certain provisions of the directive “concerning the use of technologies by providers of number-independent interpersonal communications services for the processing of personal or other data for purposes of combating child sexual abuse online” was “a top priority for the Portuguese presidency”, to which “considerable resources are being devoted from day one”.
Noting that the ‘conciliatory’ meetings between the institutions during the legislative process in the EU -, held on 17 December 2020, showed that the positions of the Council and the European Parliament were far apart, the justice minister recalled that it was then agreed that technical discussions should continue around the proposal to try to bring the institutions closer together.
To this end, Van Dunem noted, since Portugal took over the six-month presidency of the Council of the EU on 1 January this year, there have already been eight technical meetings with the European Parliament, the latest on 12 February, along with several informal meetings with the European Commission and bilateral meetings with member states, “held on an almost daily basis”.
“The Portuguese presidency of the Council is strongly committed to reaching a rapid and positive conclusion to this dossier. The technical meetings have allowed progress on some outstanding issues. However, the approaches of the co-legislators to this proposal remain fundamentally different. The Portuguese presidency is therefore convinced that a trilogue at political level is necessary at this stage”, argues Francisca Van Dunem, justifying the scheduling of a new trilogue today.
“The Portuguese presidency is committed to putting concrete constructive proposals on the table to help reach a common understanding and an agreement with the EP as soon as possible. We are confident that the EP is equally committed to an agreement very soon to combat child sexual abuse online as effectively as possible, and we look forward to a fruitful discussion in the trilogue,” concludes the Minister.
In September last year, the European Commission proposed a provisional Regulation to ensure that online communication service providers can continue to detect and report child sexual abuse online and remove child sexual abuse material.
The proposal from Brussels aimed to fill a legal vacuum that would occur in about three months, since with the entry into force on 21 December of the new European Electronic Communications Code, certain online communication services, such as webmail or messaging services, will now fall under the scope of the Directive on privacy and electronic communications.
This EU law does not contain an explicit legal basis for the voluntary processing of content or traffic data for the purpose of detecting child sexual abuse online, which means that providers have to stop monitoring activities, unless there is then a temporary waiver from certain provisions of the directive, which the Portuguese presidency wants to ensure without further delay.
The Commission’s original proposal provided for guarantees to safeguard privacy and the protection of personal data, stressing to Brussels its “restricted scope, limited to allow the continuation of current voluntary activities, subject to the general data protection regulation”.
At EP level, and specifically within the Civil Liberties, Justice and Home Affairs Committee, which is responsible for this dossier, one of the questions that has prevented a compromise with the Council is whether “grooming” – the solicitation of children for the purpose of engaging in sexual activities – should be covered.
A number of MEPs, concerned about data protection and the impact on fundamental freedoms, argue that the regulation should apply only to videos or images exchanged in messaging and email services, and not to the monitoring of text or audio communications.