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In the EDRi-gram 10.12, we reported on projects of the European Commission to coerce industry into the introduction of “voluntary” upload filters. Following the Scarlet/Sabam case in the European Court of Justice, such filtering would constitute a restriction on fundamental rights and, if proportionate, would need a legal basis in order to be in compliance with the European Charter of Fundamental Rights and the European Convention on Human Rights.

Now, thankfully, the European Commission's apparent willingness to simply ignore legal safeguards appears to be running up against increasing opposition. The Civil Liberties Committee of the European Parliament last week adopted its Opinion on “Protecting Children in the Digital World.” Within the context of that Opinion, a compromise text was adopted with the support of all political groups. Referring to actions by industry, parliamentarians stressed that “any such measures should fully respect the rule of law and legal certainty, take into account the rights of end users and comply with existing legal and judicial procedures and the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union.”

The European Data Protection Supervisor has also this week issued an opinion on the same initiative. Taking a similar line to the Civil Liberties Committee, the EDPS stresses the need to adequately implement the general and the telecommunications-specific data protection Directives as well as the Charter of Fundamental Rights of the European Union. Interestingly, the EDPS pointedly does not only refer to measures implemented by the European Commission but also that stresses that “all measures to be deployed further to the Communication should be consistent with this framework.” This statement is clearly meant to cover “voluntary” measures which the Commission manages to persuade industry to implement.

The position of the European Commission on measures adopted as a result of projects that it either runs or finances is far from clear. Frequently, it facilitates and directs discussions that lead to quasi-regulatory or policing measures being introduced by industry, without taking any political or legal ownership of them. It seems legally, morally and practically questionable for the European Commission to push industry to “voluntarily” implement legally dubious policies, particularly when these do not reflect official Commission policy.

On 3 May 2010, the current College of Commissioners was the first one to adopt individual and personal oaths to uphold the European Charter of Fundamental Rights.

Commission Communication on a “Better Internet for Children” (2.05.2012)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0196:FI...

EP Civil Liberties Committee Opinion
Not yet online

EDPS Opinion on the Communication from the Commission - "European Strategy for a Better Internet for Children" (17.07.2012)
http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/...

Digital Agenda: Coalition of top tech & media companies to make internet better place for our kids (1.12.2011)
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1485&...

EDRi-gram: The rise of the European upload filter (20.06.2012)
http://edri.org/edrigram/number10.12/the-rise-of-the-european-upload-f...

(Contribution by Joe McNamee - EDRi)