Insights Proposed law to derogate from the ePrivacy Directive to enable the detection of child sexual abuse online: European Parliament adopts position


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 certain online communications service providers to use technology (on a voluntary basis) to detect, report and remove online child sexual abuse material (“CSAM”) and material relating to 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 the Interim Regulation for two years until a long-term solution for addressing CSAM is established under the proposed Regulation laying down rules to prevent and combat child sexual abuse, which is currently passing through the EU legislative process (previously reported by Wiggin).

The Commission’s proposal was considered by the European Council and Parliament. According to reports, the Council 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 proposed to extend the Interim Regulation only to 3 May 2025. Further, Parliament proposed amendments to the Interim Regulation to remove all references to the solicitation of children and proposed a new detailed template to be used by service providers in future when complying with the annual reporting obligations under the Interim Regulation. The European Data Protection Supervisor subsequently published an Opinion on the proposal on 24 January 2024 (previously reported by Wiggin) repeating the concerns it had previously expressed over the Interim Regulation.

According to reports, on 1 February 2024, the European Parliament endorsed a report on the proposal from the LIBE Committee. It retains the LIBE Committee’s proposed deadline for the extension of the Interim Regulation to 3 May 2025 and the new more stringent provisions concerning the annual transparency reporting obligations. It does not delete the references to child grooming in the Interim Regulation save that it proposes to delete the definition of “solicitation of children”, leaving its position on solicitation unclear. The report makes it clear that the Parliament will not be prepared to endorse any further extensions to the Interim Regulation.

Negotiations can now begin with the Council to finalise the new law.

For more information, click here and here.