Insights ePrivacy Directive derogation for the detection of child sexual abuse online: EU Council and Parliament Committee publish positions

As reported by Wiggin previously, on 30 November 2023, the European Commission published a proposal for a new Regulation amending Regulation (EU) 2021/1232 on a temporary derogation from certain provisions of the E-Privacy Directive (2002/58/EC) to combat child sexual abuse online (“Interim Regulation”). The Interim Regulation essentially allows online communications service providers to use technology (on a voluntary basis) to detect, report and remove online child sexual abuse material (“CSAM”) and the solicitation of children without being in breach of the confidentiality obligations under the E-Privacy Directive. The Interim Regulation expires on 3 August 2024 and the proposed new Regulation seeks to extend that term for two years. The Interim Regulation was always meant to be a short-term solution. The long-term solution for addressing CSAM is addressed in the proposed Regulation to prevent and combat child sexual abuse, which is currently going through the EU’s legislative process. Until that legislation is approved, it remains necessary to extend the term of the Interim Regulation.

The Commission’s proposal has now been considered by the European Council and Parliament. According to reports, the Council has simply proposed to extend the term of the new Regulation even further to 3 August 2027. The draft report published by the Committee of the European Parliament responsible for this legislation (LIBE) on 17 January 2024 proposes to extend the Interim Regulation only to 3 May 2025. Further, Parliament proposes amendments to the proposal to remove all references to the solicitation of children and proposes a detailed template to be used by service providers in future when complying with the annual reporting obligations under the Interim Regulation.

The Council and Parliament will now commence negotiations on the proposed Regulation.

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