Hungary makes new attempt to control chat

For more than two years, the EU institutions have been arguing about justified chat control. The Commission will require Internet services to search their users' content for criminal offenses and send it to the authorities if there is suspicion. Parliament describes this as mass surveillance and demands that only unencrypted content from suspects be scanned.

The EU states have not yet been able to agree on a common position. Representatives of the national governments have negotiated 31 times in the working group on criminal prosecution. However, both the Spanish and Belgian Council presidencies were unable to reach an agreement.

Hungary has held the presidency of the Council of Ministers since July. Viktor Orbán's government produced several scandals right from the start. Now that the summer break is over, negotiations on chat control are continuing. Today, the Permanent Representatives discussed the law.

Hungary makes new proposal

In preparation, Hungary drafted a compromise proposal and sent it out as a four-page debate paper. We are publishing the document in PDF format.

Hungary proposes to adapt Belgium's last proposal in some points. According to this, service providers should continue to be obliged to monitor chats. However, they should initially only look for known crimes. Large tech companies already do this today, but only in unencrypted content.

The search for previously unknown abuse material and grooming will initially remain voluntary. Service providers should “do everything in their power to contribute to the development of reliable and accurate technologies for detecting new CSAM and grooming”. If the technology is good enough, this will also be confirmed.

Hungary does not address other problems. Service providers are still supposed to scan all content of all users without cause, especially those who are not suspected. The Council's legal service criticised this as violating fundamental rights. Service providers are still supposed to search encrypted content, for example with client-side scanning. Scientists criticise this as unsafe and dangerous.

States want to continue negotiating

It is not yet clear whether the states can agree on onerous chat control based on known content. The permanent representatives spoke about the proposal for almost an hour today, and almost all states took the floor. The positions are not particularly surprising.

Many EU states absolutely want chat control. They don't actually want to exclude new material and grooming. These countries would accept the proposal as a compromise. But they don't want any further “softening”.

Other states remain skeptical. They criticize above all the proportionality and the handling of encryption. This continues to include Germany, and the federal government cannot agree to this proposal either.

A third group of states has not yet made a clear decision. They are ready to act on the proposal and are waiting for a new concrete draft law. This includes France, which softened its opposition in June.

Agreement in the next few weeks?

The Hungarian Presidency's conclusion from today's discussion is “that there is openness to the proposal,” an EU official tells us. “The next step for the Presidency will be to present a compromise proposal in order to continue the discussion at working level.”

The law enforcement working group will meet again in two weeks. The proposal will probably be discussed there. The permanent representative could then deal with the issue again at the end of September or beginning of October.

If Hungary has its way, the justice and interior ministers could decide on the Council's position as early as October 10. However, no timetable has yet been set.

Here is the document released from the PDF:

• Date: 29 August 2024
• Classification: Limit
• Document: 12319/24
• Interinstitutional file: 2022/0155(cash on delivery)
• Out of: Presidency
• To: Committee of Permanent Representatives
• Theme: Proposal for a Regulation of the European Parliament and of the Council laying down rules on preventing and combating the sexual abuse of children
• Here: Political debate

I. BACKGROUND/INTRODUCTION

1. On 11 May 2022, the Commission presented to the Council and the European Parliament a proposal for a Regulation laying down rules on preventing and combating child sexual abuse, aiming to require online service providers, such as providers of hosting services and interpersonal communication services, to prevent the dissemination of child sexual abuse material (‘CSAM’) and, where appropriate, to detect, report and remove it, to prevent and, where appropriate, to detect and report contacting of children (‘grooming’), and to set up a new decentralised EU agency (‘EU Centre’) to support the implementation of the proposed Regulation, together with a network of national coordinating authorities and other competent authorities.

2. In the Council, the proposal has so far been examined in 31 meetings of the Law Enforcement – ​​Police Working Party (LEWP-P) in order to prepare a mandate for negotiations with the European Parliament.

3. The Committee of Permanent Representatives held political debates on the above proposal on 31 May and 13 October 2023 to discuss aspects related to proportionality, cybersecurity and the scope of surveillance orders.

4. In the European Parliament, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) is leading the negotiations on the proposal. It appointed MEP Javier Zarzalejos (EPP, ES) as rapporteur in October 2022. The LIBE Committee adopted its report on 14 November 2023 and the European Parliament's position was deemed to be adopted on 22 November 2023.

5. Regulation (EU) 2021/1232, which provides for a temporary derogation from certain provisions of Directive 2002/58/EC as regards the use of technologies by providers to combat child sexual abuse online, has been extended until 3 April 2026. The proposed Regulation, which provides a long-term legal framework, needs to be agreed swiftly to ensure that it can enter into force before the extended temporary legal framework expires.

II. PRESIDENT’S COMPROMISE PROPOSAL

6. The Presidency notes that the work carried out by previous Presidencies provides a solid basis for further developing a compromise proposal with the aim of achieving a partial negotiating mandate with the European Parliament.

7. The Presidency also notes that the long-term legal framework to be established by this proposed Regulation should be no less effective in achieving the objective of preventing and combating child sexual abuse than the temporary legal framework provided for in Regulation (EU) 2021/1232.

8. The purpose of this note is to provide the Permanent Representatives Committee with the opportunity to provide political guidance so that the Presidency can verify whether there is sufficient support for the planned building blocks outlined below, before working out the details of a new compromise proposal.

9. The Presidency proposes to pursue the proposal for a partial mandate for negotiations with the European Parliament as set out in document 11277/24 with the following amendments:

(a) Detection orders should be limited to known child sexual abuse depictions (CSAM). New child sexual abuse depictions and grooming would fall outside the scope of detection orders but should remain within the scope of risk assessment and risk reduction obligations.

(b) The temporary derogation from certain provisions of Directive 2002/58/EC for the purpose of combating child sexual abuse online should be continued by an extension of Regulation (EU) 2021/1232 limited to new forms of child sexual abuse and grooming, in order to allow sufficient time for the further development of technologies and the possible future revision of the Regulation under the review clause set out below.

(c) A review clause would require the Commission to assess the need and feasibility of including new CSAM and/or grooming cases in the scope of detection orders in the future, taking into account in particular the reliability and accuracy of detection technologies available on the market. This could lead to a new legislative proposal from the Commission and it would then be up to the co-legislators to decide whether to extend the scope of detection orders.

(d) The specific safeguards for detecting new CSAM cases, such as delayed hit-based reporting and pseudonymisation, are redundant and should therefore be deleted.

(e) Service providers should be required to do their utmost, in cooperation with the EU Centre, to contribute to the development of reliable and accurate technologies to detect new forms of CSAM and grooming.

III. WHAT HAPPENS NEXT

10. The Presidency aims to reach a partial general approach at the Council meeting on 10 October 2024, excluding Article 42 on the selection of the seat of the EU Centre, which should be subject to an interinstitutional procedure along the lines of the selection of the seat of the future Anti-Money Laundering Authority (AMLA).

11. Against this background, the Permanent Representatives Committee is invited to indicate whether it can support the Presidency's suggestion to pursue the proposal for a partial negotiating mandate with the European Parliament as set out in document 11277/24 with the modifications described in point 9 above, such as limiting the scope of the detection orders to known CSAM and providing that the future inclusion of the relevant provisions relating to detection orders for new CSAM and grooming is subject to a review clause and only possible following a new legislative proposal.