Strasbourg, 21 November 2011

CDMC(2011)019
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STEERING COMMITTEE
ON THE MEDIA AND NEW COMMUNICATION SERVICES

(CDMC)

______

15th meeting
From 29 November to 2 December 2011
Council of Europe, Agora Building, Strasbourg
(Room G01)

Draft comments by the Steering Committee on Media and New Communication Services (CDMC) on the Recommendation of the Parliamentary Assembly of the Council of Europe number 1980 (2011) on combating “child abuse images” through committed, transversal and internationally coordinated action

1.The CDMC considers the Parliamentary Assembly of the Council of Europe (PACE) Recommendation 1980(2011) and the related Resolution 1834(2011) on combating child abuse images through committed, transversal and internationally coordinated action an important step towards the elaboration of a comprehensive Council of Europe strategy against child abuse, child pornography and trafficking in human beings. Child sexual abuse is a hideous crime which deserves severe punishment and strong public condemnation. While there is now increased awareness about this scourge and efforts to combat it and punish criminals has redoubled, the development and expansion of the new communication services and the Internet has also provided new tools to those minded to abuse children or who engage in child trafficking.

2.The fight against sexual abuse of children off and online is a complex but indispensable undertaking which should, and can, be effective if based on the principles and values of human rights, democracy and the rule of law. Any legal framework must be firmly grounded on the European Convention on Human Rights and the relevant case-law of the European Court of Human Rights. By complying resolutely with their commitments and obligations under international law, and pursuing and promoting vigorous coordinated action at national and international level as recommended by the Parliamentary Assembly, states will also help reinforce the effectiveness of the Lanzarote Convention.

3. It is of fundamental importance to underscore, at the outset, that action to protect children against abuse is undeniably necessary in a democratic society; such action responds to an incontestable pressing social need. In a balancing exercise, this objective may therefore well justify measures involving an interference with other rights, subject to fully satisfying the tests of legality and of proportionality, the latter understood as the ability to demonstrate measurable, sufficient and tangible results directly stemming from the measures in question.

4. Against this background, the CDMC wishes to recall that the installation and the use of Internet filters should guarantee the full exercise and enjoyment of freedom of expression and the right to impart and receive information regardless of frontiers in the new digital environment. More specifically, any blocking or filtering of content should be seen as complementary to other measures and should comply strictly with the provisions of Article 10, paragraph 2, of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights.

5. Reference should be made in this connection to the Committee of Ministers Recommendation on measures to promote the respect for freedom of expression and information with regard to Internet filters. It provides important guidance for policy-makers and legislators. With due regard to these standards, the CDMC supports the position advanced by the Parliamentary Assembly that member states “should strengthen their relevant national legislation, in particular by creating a strong legal basis for the intervention of law enforcement agencies according to procedures which are transparent and fully respectful of democratic principles and human rights.”

6. Despite modest resources, certain highly creative and daring anonymous individuals have demonstrated that technology can be used to reduce the offer of offending online material involving child abuse. Action outside the law cannot be condoned; vigilante-like outlaw activity can easily escalate to equally unacceptable lynching. By contrast, an adequate legal framework with due regard to human rights exigencies and sufficient safeguards, including transparency and accountability guaranteed by independent scrutiny, should allow law enforcement agencies to draw inspiration from such anonymous actions with a view to preventing the distribution of or access to, or to routing out, online child abuse material.

7. Delaying action to eliminate outright child-abuse content may sometimes be justified by the interest of the identification, apprehension and successful prosecution of the perpetrators of child abuse. However, delay may also prolong the victim's abuse through the ongoing dissemination of the abusive content, and will give a sense of security and impunity to criminals. It is therefore desirable to strike a balance between investigation of crime and damage minimisation through prompt and energetic action, with due regard to human rights exigencies, to reduce offer, taking down or destroying content of a criminal nature. Article 8 of the European Convention on Human Rights and Convention 108 are highly relevant in this respect.

8. Another matter worth considering relates to the possible misuse of online content concerning, created or posted by children. As acknowledged by the Committee of Ministers together with many other bodies and entities, new technologies bring about considerable benefit, including in terms of economic development and positive social change; indeed, in its 2007 Recommendation, the Committee of Ministers underlined the public service value of the Internet. However, such benefit does not come without risk, especially to the most vulnerable in society, children in particular. In that connection, the Declaration of the Committee of Ministers on protecting the dignity, security and privacy of children on the Internet (adopted on 20 February 2008) signalled that, except when it is necessary for law enforcement purposes, there should be no lasting or permanently accessible record of the content created by children on the Internet which challenges their dignity, security and privacy or otherwise renders them vulnerable now or at a later stage in their lives. The Committee of Ministers further invited member states together, where appropriate, with other relevant stakeholders, to explore the feasibility of removing or deleting such content, including its traces (logs, records and processing), within a reasonably short period of time. Follow up work is desirable. Committee of Ministers Recommendation Rec(2006)12 on empowering children in the new information and communications environment is also relevant.

9. The borderless nature of the Internet itself and the technical possibilities it offers to international and organised crime call for coordinated responses including as regards child abuse images disseminated and accessed via the internet. In this respect, the CDMC would draw attention to the valuable conventional texts offered by the Council of Europe (Lanzarote and Budapest Conventions) and to other relevant standards developed from a human rights perspective (Human Rights Guidelines for Internet Service Providers, Committee of Ministers declaration on net neutrality) as well as those still under preparation (recommendations on the protection of human rights with regard, on the one hand, to search engines and, on the other hand, to social networking services). In respect of search engines and social networks, the possibility of differentiated treatment of content should be explored taking account of the particular sensitivity of data, information and content created by or concerning children.

10. To conclude, the CDMC is pleased to note that the Parliamentary Assembly implicitly recognises the value of the Committee's achievements over the years and welcomes the proposal to engage further work for the protection of children against abuse within a Council of Europe framework. Subject to Committee of Ministers decisions on the terms of reference to the CDMC's successor Committee (Steering Committee on Media and Information Society - CDMSI), it would be desirable that the latter be closely associated to any additional work carried out in pursuit of this necessary objective, providing support and expert advice within its area of competence and with a view to ensuring overall consistency and full respect of human rights exigencies.