Online Safety – A step too far? | Fieldfisher
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Online Safety – A step too far?



1. Background: 

The protection of children from online harm has been at the forefront of the European Parliament ("Parliament") and European Council's ("the Council") agenda in recent years. The development of the digital world has coincided with the increased circulation of images and videos of child sexual abuse.
While certain providers of hosting or interpersonal communication services ("providers") voluntarily use technologies to detect, report and remove online child sexual abuse on their services, it is currently not mandatory and the system in place has been criticised for being too inconsistent. The voluntary approach varies between each online provider and has been described as being insufficient in curtailing the spread of images and videos of child sexual abuse.

2. Proposal for a Regulation laying down rules to prevent and combat child sexual abuse. COM (2022) 209:

To address these challenges, the European Commission have put forward proposals to establish a clear and harmonised legal framework on preventing and combating online child sexual abuse.

One of the proposals is to introduce an obligation on providers to detect, report, block and remove child sexual abuse material from their services. It is proposed that the rules only apply to certain types of online services which have proven to be vulnerable to misuse for the purpose of dissemination of child sexual abuse or child grooming.  While the European Commission state that the measures are targeted and proportionate to the risk of misuse, critics have concerns that such measures will impede on the fundamental rights of service users and may place a disproportionate burden on online providers. 

A further proposal is to establish a European Centre ('"the EU Centre'") to prevent and counter child sexual abuse. The EU Centre will create, maintain and operate databases indicators of online child sexual abuse that providers will required to use to comply with detection obligations. It is proposed that the EU Centre will receive reports from providers and forward them to Europol as well as national law enforcement authorities.

3. Ireland:

The Joint Oireachtas Committee ("the Committee") on Justice considered the proposals recently. In their published assessment, the Committee affirmed their support in respect of the fundamental objective behind this proposal to combat online sexual abuse. However, the Committee expressed concern about several elements of the proposal as currently formulated. The Committee observed that some of the world's leading digital giants have headquarters in Ireland and that there may be a particular burden placed on Irish national authorities in terms of implementing the proposed measures.

The Committee noted that the proposed legislation is unprecedented in that it requires indiscriminate scanning of digital communications. The Committee is of the opinion that the proposed legislation may undermine the security of our communications and online services as it would require online providers to remove end-to-end encryption or introduce client-side scanning. The Committee are of the view that this is extremely intrusive in terms of people's right to privacy, freedom of expression and data protection. This view was also shared by European Data Protection Board and European Data Protection Supervisor.

The Committee believes that this indiscriminate scanning may lead to many people being pulled into a net of suspicion for the worst kind of crime. This concern relates to the inaccuracy of indiscriminate scanning which has resulted in a number of 'false positives' occurring.

Furthermore, the Committee expressed its concern as to whether or not introduction of this proposal was compatible with other fundamental rights and EU case law. The Committee ultimately decided that this proposal warrants further scrutiny and it was also agreed that a Political Contribution be drafted for issue to Simon Harris TD (Minister of Justice) and the European Institutions for further consideration.

4. Moving forward:

Ireland has recently enacted the Online Safety and Media Regulation Act 2022 ("the Act") which places obligations on audiovisual on-demand services and video-sharing platform services to take appropriate steps to minimise the exposure of harmful online content to users.

The proposals discussed in today's article goes far beyond the scope of the Act and highlight that a fair balance must be struck between measures being implemented to protect child victims of sexual abuse with the fundamental rights of other users and of the providers

While the objective aim of the proposal is to be commended, the draft in its current form is viewed by many, including the Committee, as being a step too far.

We will comment further once supplementary correspondence has been released from the European Institutions and the Oireachtas Committee.

If you would like to read our article in respect of the Online Safety and Media Regulation Act 2022 – please click here.

Written by:  Sinéad Taaffe and Damien Watson

Areas of Expertise

Public and Regulatory