The European Union (EU) Commission is adopting a defensive stance amidst mounting criticism of its proposed regulation on online surveillance to combat child abuse. The Commission’s own departments have reported that findings from previous case law offer no indication that the suggested regulation violates the EU Charter of Fundamental Rights. However, the Legal Service of the EU Council of Ministers has raised objections, suggesting that the proposed regulation may violate the core content of the fundamental right to respect for private life. The project is at risk of failing before the European Court of Justice (ECJ), the report stated.
The Commission’s draft focuses on the use of so-called disclosure orders, which would mandate encrypted messenger services such as WhatsApp, Signal or Threema to search for new and known images of child abuse. The federal government is against the use of chat control, while a majority of EU member states are in favour of it and want to extend it to audio communications.
The Commission maintains that innocent scanning of private communications is intended as a last resort. Such orders could only be released after a mandatory prior risk assessment process, and the competent court in the respective member state must examine whether there is a significant risk that an affected service is misused for the sexual abuse of children.
Whilst service providers will have some discretion in interpreting the proposal, the draft sets out a detailed framework for this purpose, including protective measures. In conclusion, the Commission suggests that the fundamental rights guaranteed in the EU “are not absolute”, and must be considered in connection with their function in society. A balance is necessary that takes into account all the circumstances of the present case.
