1. Introduction
“But I Was Only Looking…”
1. The issue of “child pornography” is a complex one.
It refers to a series of offences committed against children, starting
with the solicitation, corruption or trafficking of children for
sexual purposes and the trafficking of children, to the distribution,
collection and consultation of images of the abuse committed, over
various forms of sexual abuse perpetrated on children, sometimes
even leading to their death. This series, already frightening enough
in itself, may then even lead to further offences: people consulting
“child abuse images” may be incited to produce such images themselves,
either because the images have been the last trigger of an existing criminal
potential, or because they will allow them to access some of the
closed circles in which such images are often shared today.
2. “Child pornography” may therefore not only be the result and
visual depiction of child abuse but also a “multiplier” of the sexual
abuse and exploitation of children. As rapporteur of the present
report, I am horrified by this series of interlinked crimes and
its multiple causes and conditions in our society which go unnoticed
by most of us. I am determined to shed some light on this complex
issue, with the purpose of proposing concrete legal and political
measures.
3. The Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse (Lanzarote Convention,
CETS No. 201) which was opened for signature in October 2007 and
entered into force on 1 July 2010, defines the term “child pornography”
as “any material that visually depicts a child engaged in real or
simulated sexually explicit conduct or any depiction of a child’s
sexual organs for primarily sexual purposes”. The Convention further
defines as a “child” any person under the age of 18 years, which shall
also be the definition adopted for the present report. Although
the term of “child pornography” is widely used at the international
level and in national legislation, and also appears in the title
originally proposed for the current report, I suggest adopting a
more appropriate terminology.
4. For many years, international child protection and law enforcement
agencies have demanded that the terminology should be changed from
“child pornography” to “child abuse images” (covering also animated pictures,
drawings and images of fictional children), as the first does not
sufficiently convey the seriousness of the abuse upon the child
whilst the latter also refers to the impact upon the child and thus
better reflects the complexity of the problem. For my report, I
would like to use this term, which is also reflected by the new
title suggested. In the long term, this notion or even the one of
“child abuse material” (also covering texts) should be used in all
legal texts and political debates in order to base European action
on a common understanding and a common set of definitions. A complementary
term often used by law enforcement experts is the one of “child
exploitation material” which refers to any material which does not
depict a sexual act involving a child but nevertheless shows a child
in a sexualised pose.
5. There does not seem to be a universal definition of child
sexual abuse. However, a central characteristic of most abuse cases
is the dominant position of an adult that allows him or her to force
or coerce a child into sexual activity (of various types). Child
sexual abuse is not solely restricted to physical contact but can
include noncontact abuse, such as exposure, voyeurism, and child
pornography. Abuse by peers also occurs.
As concerns the term of “child sexual
exploitation”, it generally refers to more systematic or even commercial
forms of child sexual abuse.
In this, it is distinct from the
definition used by law enforcement agencies considering that “exploitation”
refers to forms of abuse which do not involve physical contact.
6. The Council of Europe ONE in FIVE Campaign to stop sexual
violence against children, mentioned in the original motion for
this report (
Doc. 12385), is aimed at raising awareness of and fighting the
sexual abuse and exploitation of children in its various degrees
and forms. It does so, amongst others, by promoting further signatures,
ratifications and the full implementation of the Lanzarote Convention
by all Council of Europe member states, and other states willing
to accede to this convention. With my report, I wish to explore
one of the “modern” problems of child abuse and exploitation, which
is on the rise with the development of the Internet and other new
media. Detailed information provided by several international experts
has been taken into account for this report in order to shed light
on this complex matter in the most objective way and to allow the Assembly
to make its own substantial contribution to this important debate.
2. “Child
abuse images”: more than just pictures
7. Both the terms “child pornography” and “child abuse
images” do not fully reflect the scope of the problem and all the
offences involved. In reality, these terms do not only refer to
the existence and consultation of pictures of child abuse as they
may suggest. Behind each child abuse image – which most of us will
never see or wish to see – there is physical abuse of at least one
child victim, as well as a whole series of related crimes. In some
countries the full range of activities linked to child abuse images
are criminalised, involving activities drawing children into the
abuse (“grooming”, corruption of children, child trafficking), the
actual sexual abuse of children with the purpose of producing images,
the distribution of child abuse images, and finally the possession
or consultation of such images. However, whilst the infliction of
actual physical abuse on a child is uncontested as an offence, notably
the consultation or viewing of “child pornography” by the individual
Internet user is not yet considered and treated as a criminal offence
in all countries, nor by all European standards.
8. Child abuse images are certainly not a phenomenon dating from
the 21st century. Pictures of childhood sexuality have existed for
many centuries, but became socially unacceptable in the 18th century
with the increasing recognition of children’s right to protection
of their physical and moral integrity. However, today the production
and dissemination of child abuse images are largely facilitated
and fuelled by new media and especially the Internet. For each child
abuse image produced, it can be expected that numerous offences
are committed, as the online distribution of child abuse images
exponentially multiplies the number of offences against the sexual
integrity of child victims. Whilst in 1995, year often quoted as
“year 0” before the Internet boom erupted in many countries, Interpol
knew about 4 000 child abuse images in total, recent figures suggest that
tens of thousands of individual children are concerned worldwide,
and that every child is depicted in several pictures which are then
endlessly reproduced. On the Child Exploitation and Online Protection
Centre’s (CEOP’s) database in the United Kingdom alone, 850 000
distinct child abuse images are stored today.
9. The circulation of child abuse images mostly happens within
closed networks which offenders may only access through secured
systems, often by delivering images of their own. These networks
include “peer-to-peer” networks in their first generation, which
have then been followed by more sophisticated open and closed networks
using so-called “virtual systems” or “clouds” (based in several
countries) or splitting images into several electronic files which
would only be re-constituted by the authorised end user.
Developing
the full history and methodology of the online distribution of child
abuse images would, however, exceed the scope of this report and
should therefore be done by those who need to examine the matter
in more detail.
10. The anonymity of the Internet removes social barriers and
taboos, creating the ideal setting for committing offences related
to child abuse images and, at the same time, provides structures
which make the identification of victims and offenders and the prosecution
of the latter extremely difficult. Moreover, the production of child
abuse images in most cases seems to take place in the circles of
trust of children and images are exchanged via non-commercial channels
and not as one could suspect, in the context of commercial exploitation
activities. In their direct environments, children are drawn into
sexual abuse via the so-called “four Ts”: teaching (“this is a good
thing happening”), threat, treat and trust. Given that children
are often drawn into the abuse by persons they trust, the percentage
of women participating in crimes related to child abuse images is
on the increase. Some experts suggest a pyramidal typology for online
content offenders, including those connected with child abuse images,
and classify them into: simple viewers, open traders, closed traders
and experts – with the level of expertise increasing from one layer
to the next.
Interestingly, this
typology, also used by Interpol today, clearly classifies the “simple
viewers” amongst the online offenders. This position, taken by many
law enforcement agencies, should finally find entry into all international
and European standards, including the Lanzarote Convention.
11. Those who offend in one way or another do so for a variety
of reasons and do not form a homogeneous group. Studies undertaken
some years ago, but still valid, have revealed some of the reasons
for collecting child abuse images: sexual arousal and gratification,
justification of paedophile behaviour which is shared with many
others, “preserving” a child’s youth in form of pictures, using
them as a medium of exchange with fellow exploiters, blackmail (using
pictures to put pressure on children and their families), access
to the market of abuse images via relevant exchange networks, and
profit made out of child abuse images. Whilst some “child pornography”
offenders will pose a direct threat to children (by abusing them),
others will indirectly participate in the abuse because their demand
for child abuse images can only be satisfied through children being
sexually abused.
Effective prevention strategies
will certainly have to examine the motivation of various categories
of offenders in more depth in order to identify the appropriate
action to be taken.
12. Recent figures on child abuse images are frightening: For
2010, the International Association of Internet Hotlines (INHOPE)
notes over 24 000 reports of child abuse material processed, specifying
that 71% of children were pre-pubescent, 25% were pubescent and
4% were infants. INHOPE further indicates that 77% of the victims
are girls, 11% are boys and 12% of the images involve both genders,
and that 78% of websites reported were non-commercial and 22% were
commercially based, namely requiring payment of some kind.
Some experts say there is a marked
growth in images of younger children being subjected to ever more
violent and depraved sexual acts.
According
to American specialists, in 2006, the benefits generated by paedo-pornographic
images were estimated at 21 billion dollars, which gives just an
idea of the scope of the commerce of child abuse images via the
Internet, even though it must not be forgotten that most of the exchange
of child abuse images is of a non-commercial nature. Generally,
figures have to be handled with care: according to experts, high
rates of identified victims or offenders provided by national authorities
may not necessarily mean that there are more cases of abuse in a
given country than in others, but can also reflect the country’s
greater awareness of the issue and inclination to share its figures
at an international level. Another reason for figures (for example
detection rates) varying from one country to the other seems to
be that images are not taken into account in the same way: some
countries would investigate all pictures identified, whilst others
would neglect images where the person depicted seems to have reached
the age of (sexual) maturity. This very sensitive issue is amongst
those to be further clarified within each member state and in the
context of future international exchanges and efforts for the harmonisation
of legislation and policies.
13. In many cases, the production of child abuse images is closely
linked with other forms of sexual child abuse and exploitation,
such as “sex tourism”. It is thus not a surprise that the production
of child abuse images often involves the exploitation of children
originating from poorer countries by offenders originating from
richer countries. The issue is further indirectly linked to “softer”
forms of child exploitation, such as, for example, that recently
observed in Asian countries, where children are increasingly exposed
as sexualised objects in entertainment shows forcing them to dress
or behave in an adult way
(and where many of the
children exploited for “child pornography” or “sex tourism” come
from). The general “sexualisation” of the media accessible by children
is also illustrated by recent reports from Switzerland which revealed
that 37% of children between 10 and 12 had already seen pornographic
images.
Child sexual abuse and exploitation
worldwide are taking place in a context where children are increasingly
“sexualised” by the media, by the entertainment sector or by advertisements
in all our countries. It will not be possible to address all these
issues in the present report, but it is important to be aware of
them to understand why a comprehensive approach is required.
3. Need for more committed
action against child abuse images
14. The phenomenon of child abuse images is of both a
local and global nature: victims are real and abuse takes place
within our local communities while images can potentially be viewed
by anyone in the world. To tackle the problem effectively, both
dimensions need to be addressed. According to European law enforcement agencies,
there are four main angles by which child abuse images can be tackled:
1) the producers of such images, 2) the websites hosting images,
3) the images themselves, and 4) the financial flows generated by commercial
websites.
15. The usual proceedings in dealing with child abuse images would
follow two strands. First of all, images or websites hosting them
would be identified, very often through specialised hotlines dedicated
to reporting child abuse images to the police, but increasingly
through specialised programmes automatically detecting relevant
key words linked to websites. National and international law enforcement
agencies (national police forces in co-operation with Europol and
Interpol) would then identify the Internet Service Providers (ISP) hosting
the websites and through them try to reveal the origin and producers
of images, thus the actual sex offenders, in order to prosecute
them. Second, law enforcement agencies would, in parallel, seize
and register the material and initiate the deletion of the relevant
images from the Internet. Based on the child abuse images seized,
they would try to identify the victims in order to stop the abuse
inflicted upon them as soon as possible and prevent further abuse
if possible. Unfortunately, it seems that not all national law enforcement
agencies are making the same efforts with a view to the identification
of victims and offenders, and the international co-operation that
is required. Especially the practice of immediately blocking websites
in order to avoid the “re-victimisation” of children every time
their image is consulted, is not yet as widespread as it should
be.
16. The complexity and difficulty of fighting crimes related to
child abuse images is reflected by the discrepancy between the images
registered and children actually identified: the International Child
Sexual Exploitation image database (ICSE DB) of Interpol
contains about 650 000 child abuse
images, and constitutes a major tool for international co-operation
aimed at identifying child victims. National law enforcement agencies,
such as the Central Office for the Prevention of Violence against
Individuals (OCRPV) of the Criminal Investigation Department in
France, generally have direct access to the Interpol database which facilitates
the task of identifying victims and producers. However, it is estimated
that only about 850 victims have been identified worldwide so far,
95 of them in France. In many countries specially trained and dedicated police
services are in charge of unveiling new websites hosting illegal
content. This often requires the intervention of undercover agents
who need to be provided with a minimum stock of child abuse images themselves
so as to be able to enter the “peer-to-peer” or other closed networks.
Specialised staff require particular attention and follow-up, not
only to make them psychologically strong against the images they
have to view, but also to make sure that no paedophiles infiltrate
relevant police forces to satisfy their personal desire. This shows
how many resources need to be mobilised in order to effectively
fight offences related to child abuse images.
17. According to Interpol, any policy aimed at effectively fighting
child abuse images and related offences needs to follow a strong
“victim-centred approach”. In its Recommendation No. 4 (2011), the
ICPO-INTERPOL European Regional Conference recalled that “the identification
of the victim and offender halts further abuse and therefore reduces
the levels of child abuse material circulating online”, and that
Interpol co-ordinates an International Victim Identification Specialists
network and holds a core instrument with its International Child Sexual
Exploitation Database (ICSE DB) quoted above. The Regional Conference
further encouraged all member countries in the European region “to
establish procedures for the systematic collection and storage of all
child abuse material being seized or otherwise revealed within their
jurisdiction” and to “establish a National Victim Identification
Team … authorized … to be connected to the ICSE database”.
18. A recent case illustrates the success of joint efforts of
investigation into child abuse images: the European Union law enforcement
agency Europol (based in The Hague) recently managed – after years
of investigation – to destroy one of the world’s largest “child
pornography” rings involving 670 suspects, 230 child victims and
almost 200 arrests.
Victims and producers of child abuse
images are, however, difficult to find, because they often originate
from distant locations or can be found in complex criminal organisations.
The general tendency, as already mentioned, concerns children from
poorer countries or social classes exploited by people from wealthier
countries or for the purpose of producing images to be commercialised
in wealthier countries. The geographical distribution of child sexual
abuse webpages as known to the Internet Watch Foundation (IWF)
in 2010 shows that most images are
hosted in the United States (42%), followed by Europe (including
Russia; 41%) and Asian countries (17%), which gives an indication
of where they are produced. International co-operation with and
between countries where child abuse images are identified exists,
but is complex and very often involves lengthy procedures. Future
policies therefore need to address this issue and make international
co-operation more reactive and efficient, given that, via the Internet,
child abuse images and related offences go beyond all geographical
boundaries.
19. In addition to unveiling and putting an end to existing child
abuse networks, it will be important to develop stronger and more
comprehensive prevention strategies in the future. In this respect,
further research in individual member states and at international
level will be required in order to better understand the “pattern” of
abuse taking place with the purpose of producing child abuse images.
Fighting the production of child abuse images will certainly have
to pass through fighting the root causes for the sexual abuse of
children in general, through making children strong against any
attempts to sexually abuse of them, and especially through protecting
the most vulnerable children from such crimes. Finally, the continued
and reinforced involvement of the private sector is of crucial importance.
With regard to child abuse images, private players appear both as “facilitators”
of the distribution of illegal Internet content and as active participants
in the fight against illegal Internet content, such as child abuse
images. They need to be associated with public policies following
the highest standards possible, and must be held responsible for
any action that can be harmful to children, for example by knowingly
putting online child abuse images or by not reporting such images
wherever they are identified. Given that this matter has not yet
been explored in depth at Council of Europe level, it should certainly
be put on the agenda of the upcoming intergovernmental work concerning
the media and new communication services.
4. Legal instruments,
reference texts and approaches to the issue
20. Some countries have already developed strong legislation
concerning child abuse images disseminated via the Internet, generally
under legal articles concerning “child pornography”. However, there
seem to be great differences between national laws regarding the
legality of individual acts and resulting penalties, which lead to
loopholes that can still be exploited by producers, distributors
and collectors of child abuse images. A 2010 study by the International
Centre for Missing and Exploited Children (ICMEC) shows that out
of 196 countries analysed, 89 had no legislation at all that specifically
addressed child abuse material, and of those who did, 33 did not
criminalise the possession of child pornography (regardless of intent
to distribute), whilst 52 did not even legally define child pornography.
In the light of such results, most
experts agree that there is an urgent need for more consistency,
common legal frameworks and co-ordinated international action.
4.1. European and international
legal framework and reference texts
21. Until now, there have been three main international
legal instruments which explicitly address child abuse images: the
Optional Protocol to the United Nations Convention on the Rights
of the Child on the Sale of Children, Child Prostitution and Child
Pornography, the Council of Europe Convention on Cybercrime (Budapest
Convention) and the Council of Europe Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse (Lanzarote
Convention). All three are effective tools for combating the sexual exploitation
and abuse of children because they contain specific definitions
of offences as well as provisions criminalising relevant behaviour
and allowing for more effective prosecution of perpetrators. According
to international experts, notably the United Nations Optional Protocol
and the Lanzarote Convention may also serve as a basis for setting
up legal mechanisms that require governments to implement and provide
for services to assist child victims and their families.
Generally,
the Lanzarote Convention is considered as the most complete and
advanced instrument aimed at protecting children against sexual
abuse of any form.
Other
important reference texts concerning child abuse images and related
crimes, as well as sexual violence against children in general,
are the United Nations Convention on the Rights of the Child (Article
34) and the Council of Europe Convention on Action against Trafficking
in Human Beings (CETS No. 197).
22. Nevertheless, even these most far-reaching international legal
instruments reflect a certain lack of consistency between national
approaches in some aspects, such as the question of where child
sexual abuse actually starts. Thus, the Lanzarote Convention, under
its Article 20 on “child pornography”, criminalises the full range
of offences related to “child pornography”, including its production,
proposal, distribution and transmission, as well as its procurement
to oneself and to others and possession. However, under Article
20, paragraph 1.f, it allows
each party to reserve the right not to criminalise acts of “knowingly
obtaining access, through information and communication technologies,
to child pornography”. Likewise, the Budapest Convention, covering
“child pornography” under its Article 9, allows parties not to apply
the paragraphs which would criminalise the act of procuring or possessing
“child pornography” via computer systems. This means that many countries
will not punish the “simple” consultation of child abuse images
via the Internet, although the demand for such images is known to
stimulate further abuse.
23. As rapporteur, I therefore consider that, with the purpose
of further strengthening and harmonising national legislation in
Europe and beyond, the intentional access to child pornography should
be criminalised by all countries. In this respect, the Assembly
should call for the preparation of an additional protocol to the Lanzarote
Convention in which measures to be taken against child abuse images
and related offences are to be reinforced and specified in order
to create an instrument that corresponds to the complexity of this
matter. Future changes to the Budapest Convention which could possibly
be required in order to harmonise both texts again, shall not be
treated in more depth here or in the recommendation to be proposed
to the Committee of Ministers, so as not to “dilute” the central
message of this report.
24. At the level of the European Union, a new Directive on combating
the sexual abuse, sexual exploitation of children and child pornography
is underway. Once adopted by the European Parliament, this directive
will finally replace current European Union legislation and notably
Framework Decision 2004/68/JHA. Member states will then have two
years to transpose the new rules into their national laws. Although
the draft directive seems to be based on a large consensus between
the European Commission, the European Parliament and the Council
of the European Union, long “trialogue” negotiations, involving
nine informal meetings in 2011, were necessary before reaching the
final compromise text, due to the particularly contested issue of
website blocking (see below).
25. Further references made, more or less directly, to child abuse
images and relevant counter-measures are to be found amongst the
texts adopted by the Committee of Ministers of the Council of Europe. Recommendation
CM/Rec(2008)6 on measures to promote the respect of freedom of expression
and information with regard to Internet filters develops a detailed
set of guidelines ensuring that Internet filters aimed at protecting
certain groups (children in particular) against harmful content,
are applied in the most transparent, democratic manner and that
their effectiveness, proportionality and legitimacy are regularly reviewed.
The Declaration of the Committee of Ministers on protecting the
dignity, security and privacy of children on the Internet (adopted
on 20 February 2008) covers yet another aspect of child protection
on the Internet that is often forgotten: it refers to the risks
of Internet content which children themselves put online, and which
may challenge their dignity, security or privacy or renders them
vulnerable, and invites member states to provide for possibilities
for deleting such content as swiftly as possible.
26. The Assembly has adopted various texts related to the freedom
of expression on the Internet and the protection of children against
harmful content in recent years. In its
Recommendation 1882 (2009) on the promotion of Internet and online media services
appropriate for minors, however, it refers in particular to possibly
harmful Internet content which children or adolescents may try to
access themselves, whilst, regarding child abuse images, the harm
to children would rather be done at the moment when the images of
sexual child abuse are actually produced. Nevertheless, the recommendation
already calls for greater legal responsibility of Internet Service
Providers (ISP). In
Resolution
1757 (2010) and
Recommendation
1936 (2010) on human rights and business, the Assembly generally
calls upon member states to promote the implementation of human
rights standards in business and provides interesting references
with regard to general co-operation with the private sector. Finally,
in its
Resolution 1733
(2010) on reinforcing measures against sex offenders, the Assembly
calls for improved international co-operation and exchange of information
concerning sex offenders known in each country (without favouring
a European-wide sex offenders register) and concerning the abduction
of children (through relevant alert systems).
27. We must welcome the fact that the Council of Europe covers
the issue of child protection on the Internet so broadly and has
done so for many years. However, it is important to make sure that
messages sent out to member states and other stakeholders remain
coherent, and that there is no contradiction between respective positions
taken in matters of freedom of expression, notably via the Internet,
and of child protection against all forms of violence. Likewise,
it will be of utmost importance that the different international
and European texts are implemented in a co-ordinated manner, to
make sure that notably the upcoming European Union directive which
is intended to focus notably on substantive criminal law and the
Lanzarote Convention of the Council of Europe, which provides for
a broader legal framework, can be complementary in their effects
in the future. European Union member states which have not yet done
so should be invited to express their political commitment not only
by transposing the European Union directive, but also by signing,
ratifying and implementing the Lanzarote Convention.
4.2. The European debate
on website blocking
28. The most effective way of removing illegal content
from the Internet is the deletion of relevant websites “at source”.
However, where this is not possible, for example because a website
is hosted in a foreign country and co-operation with the competent
authorities proves difficult, the blocking of pornographic websites
is an important additional tool allowing for the immediate hindering
of access to child abuse images and thus the interruption of their
exchange via a given website.
29. The issue of blocking has received much attention, including
from the media, during the negotiations related to the above-mentioned
draft directive drawn up within the European Union. Through its
original text, strongly supported by Ms Cecilia Malström, Commissioner
for Home Affairs, the European Commission wished to introduce an
obligation on all member states to block access to paedo-pornographic
content where their immediate removal proved impossible.
The European Parliament Civil Liberties
Committee (LIBE), by voting a report on 14 February 2011 (rapporteur:
Roberta Angelilli, Italy, EPP), proposed a number of amendments to
the draft directive, including to the relevant Article 21 to make
sure that blocking would continue to be optional for member states,
as at present. In its argumentation, the LIBE Committee insisted
that any measure taken by member states “shall respect fundamental
rights and freedoms of natural persons, as guaranteed by the European
Convention on the Protection of Human Rights and Fundamental Freedoms,
the European Union Charter of Fundamental Rights and general principles
of Union law”.
In parallel to discussions led
at European level, individual countries, such as Germany, have now
abandoned their plans to systematically block websites containing
child abuse images but will, in the future, focus on deleting such
images as swiftly as possible,
whilst others, such as Italy, France,
Sweden or the United Kingdom, have practised website blocking for
several years,.
30. In their argumentation, the representatives of the European
Parliament are very much in line with the Internet Service Providers
which are generally opposed to website blocking as a mandatory legal
measure, given that they qualify it as ineffective. The main argument
put forward by them is that relevant websites are regularly transferred
to new Internet Protocol (IP) addresses and that, therefore, “black-lists”
would have to be updated very regularly, almost on a daily basis.
Furthermore, according to them, much of the exchange of child abuse
images takes place in closed networks only accessible to “insiders”.
They therefore consider that website blocking does not prevent sex
offenders from exchanging their illegal material online, and that
the removal at source is the only effective technical measure in
the fight against child sexual abuse material. Further arguments
against blocking are provided by those watching over the right to
freedom of expression on the Internet and the protection of private
data who fear that the introduction of blocking and filtering mechanisms
might open the gates to their abuse for other motives (political,
religious), in particular in less democratic societies (see chapter
4.3. below). The pan-European association of Internet Service Providers (EuroISPA),
following an approach of “self-regulation”, therefore calls for
the setting up of stringent international co-operation procedures
aimed at the removal of illegal content at source and otherwise
declares its members’ readiness to continue their own co-operation
with international law enforcement agencies.
31. Child protection agencies, such as Save the Children, ECPAT
or the British NSPCC (National Society for the Prevention of Cruelty
to Children) – many of them organised jointly under the European
NGO Alliance for Safety Online (eNASCO) – have always been strongly
in favour of the immediate blocking of paedo-pornographic websites
identified. They consider that every consultation of a child abuse
image re-victimises the children depicted, encourages the creation
of new victims and should be avoided in order to immediately interfere
with the exchanges of child abuse material and to reduce the customer
base of illegal websites. During the ongoing negotiation processes
at European Union level, child protection agencies have therefore
strongly lobbied for a provision making the blocking of paedo-pornographic
websites a mandatory legal measure.
32. In their position, child protection agencies are totally in
line with the approach followed by Interpol whose experts give numerous
arguments in favour of blocking. High up on their list is the argument
that blocking is a preventive measure that only those determined
to access child abuse images will try to circumvent, an act which
would then make it impossible to claim that they made an “accidental
and unwilling access”. Moreover, Interpol points out that utilising
access blocking will free up resources within the police to work
on identifying the victims of sexual abuse rather than handling
recurring reports from the public or non-governmental organisations
(ONG) about content being redistributed again and again on various
web pages. However, Interpol favours a blocking solution that will
redirect Internet traffic to a “stop page”, which would then not
only have the pedagogic effect of reminding the Internet user that
the intended transaction was illegal, but also to provide a relevant
complaint mechanism (to make the blocking procedure more democratic).
33. Facing the argument that blocking may be technically difficult
or ineffective, experts in favour of blocking claim that “such technology
is regularly used by premium content providers to protect their
rights (to sports, films and music rights) and sees no reason why
Internet Service Providers (ISP) should not deploy similar technology
to ensure that their services do not provide child abuse images”.
For example, in the United Kingdom,
British Telecom was the first to block the access to such images,
counting 45 000 attempts of access in 2009, which would represent
a possible 58 million attempts per year worldwide. One can therefore
deduce that blocking can also be exercised on a large scale.
However, even
child protection agencies admit that blocking is only one of many
complementary measures in the fight against online child abuse material
and that the deletion of images at source is by far the best answer.
34. Many experts and decision-makers have examined the issue of
website blocking in depth without reaching a final consensus on
the effectiveness of such a measure. After having examined the various positions
taken in this complex matter, and notably in the light of the solid
experience of law enforcement agencies in this field, I am convinced
that the blocking of websites should be made mandatory as a complementary
measure wherever the immediate removal of child pornographic content
is not possible. In this respect, I much regret that the European
Union has missed its unique opportunity to have such a regulation transposed
into the national legislation of all its member states, via the
draft directive currently being prepared, and I believe that the
Assembly should also express its regret in this matter. However,
I support the Committee of Ministers (see Recommendation CM/Rec(2008)6
on measures to promote the respect of freedom of expression and
information with regard to Internet filters) in saying that such
measures on the Internet should fulfil the conditions laid out in
Article 10, paragraph 2, of the European Convention on Human Rights
and the relevant case law of the European Court of Human Rights.
All member states would have to make sure that, wherever websites
are blocked and “black-listed” this happens in the most democratic
manner. An independent supervision of relevant procedures by dedicated
institutions, with the involvement of national law enforcement agencies,
should ensure that blocking is undertaken in full respect of legal
provisions, democratic principles and human rights, by foreseeing
effective complaint mechanisms to avoid any misuse of blocking measures.
35. For any law enforcement measure leading to the filtering or
blocking of websites, and in order to avoid unlawful misuse of such
measures, for example for political reasons, the Assembly’s
Recommendation 1897 (2010) on respect for media freedom provides for some interesting
points of reference. In addition to legal action taken to block
certain websites, more individual filtering mechanisms and tools
(in the form of programmes designed for individual computers) should
be promoted in all member states. Generally, media awareness, in
particular for children, should be promoted by various measures
and campaigns as is the case in many countries, for example in the
framework of the Safer Internet Day (SID)
supported by the European Union,
and by the Internet Literacy Handbook of the Council of Europe for
teachers, parents and students which is very regularly kept up to
date.
4.3. The role of the
private sector and the European debate on “Internet freedom”
36. The private sector is an important partner for public
authorities when it comes to fighting child abuse images online,
given that the Internet is to a great extent based on the services
of private companies, such as the Internet Service Providers who
already contribute to the fight against illegal content in various
contexts. Internationally, they are organised in the framework of
the International Association of Internet Hotlines (INHOPE), along
with a number of NGOs running national hotlines. The partners pursue
the common aim of regularly reporting paedo-pornographic websites
through its special INHOPE Report Management System which has been
operational since January 2010 (IHRMS; see also figures provided
in the introduction to this report). More organisations can be found
at the national level, such as the Internet Watch Foundation (IWF)
in the United Kingdom which is directly involved in the national
blocking mechanisms.
Self-regulation of ISPs is also
promoted via various professional associations at national or European
level, such as the European Internet Services Providers Associations
(EuroISPA), which openly condemns the distribution of child abuse material.
Major Internet companies such as
Microsoft already take a proactive approach to the issue – according
to Microsoft’s own information, the company “[applies] filtering
tools and [employs] more than 100 trained experts to help detect,
classify and report child abuse images”.
Other companies should be encouraged
to follow this example in the future or to develop other proactive
measures such as quality labels for websites and Internet services.
37. More generally, the discussion on how to fight child abuse
images most effectively takes place in the context of a larger debate
on the freedom of expression on the Internet or “Internet freedom”.
In many cases, the Internet can significantly enhance the exercise
of most human rights and fundamental freedoms, and in particular
the right to freedom of expression. However, the Internet may also
be used in a way which threatens these rights and freedoms as well
as the right to private life and secrecy of correspondence, and
affronts human dignity – it here clearly reveals its “dark side”.
It is to be welcomed
that the Council of Europe actively contributes to relevant debates
through various activities such as the recent organisation of the
fourth “European Dialogue on Internet Governance (EURODIG)” in Belgrade
on 30-31 May 2011, the current preparation of a Committee of Ministers’
declaration on “Internet governance principles” (for autumn 2011)
and the preparation of the Council of Europe Strategy on Internet
Governance 2012-2015 to be adopted in Vienna on 24-25 November 2011.
The Assembly should strongly support the “multistakeholder approach”
pursued by the Council of Europe itself and close co-operation with
the private sector, and consider participating more actively in
this debate in the future. The presence of the Council of Europe
in this debate is of utmost importance, also to make sure that European
countries speak with one voice on international platforms such as
the United Nations Internet Governance Forum (IGF).
38. Even in this context and the debates on “Internet freedom”,
many experts would agree that the right to freedom of expression
needs to be lawfully restricted when it comes to the matter of child
abuse images, just as is the case for “hate speech” in many countries.
However, any limitation of access to the Internet would inevitably
pose risks to the right to freedom of expression. Therefore, comprehensive
policies are needed to address risks and harm to children on the
Internet, which should be based on three pillars: respect of human rights,
multistakeholder approaches (including the participation of children
themselves) and international co-operation. Restrictive measures
should be closely examined according to their proportionality, effectiveness and
transparency and their consequences should be made known to member
states so as to find entry into their comprehensive policies.
Although
I fully agree with the need for such comprehensive policies, I still
insist that the human right to the freedom of expression must not
be ensured at the expense of children’s human right to be protected
from “all forms of sexual exploitation and sexual abuse”
as specified by the United Nations Convention
on the Rights of the Child.
5. Conclusions
39. In the light of the results of this analysis, the
Assembly should insist on stronger legislation, more committed political
action and reinforced international co-operation between member
states of the Council of Europe and other countries to ensure that
our children are better protected from all the appalling crimes
related to child abuse images. Action to be taken at European level,
in particular at the Council of Europe, should start with the reinforcement
of legal standards through an additional protocol to the Council
of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse.
40. In this framework, there should be a change towards a common
and precise terminology, speaking of “child abuse images” instead
of “child pornography”, and agreeing on a common understanding of
such images and common criteria for investigations. Amongst the
crucial issues to be clarified are, for example, how to deal with
images on which a child’s age cannot be clearly determined and how
to deal with cases where sexual abuse has been committed by underage
offenders or where sexually explicit images are put online, for
example on social networking websites, by adolescents who are not
aware of the illegality and consequences of their actions.
41. Amongst the political measures to fight child abuse images
and related offences, the Council of Europe ONE in FIVE Campaign
to stop sexual violence against children is an important vector
to raise further awareness for the issue and invite member states
to reinforce their own action against child abuse images at national
level. In any action taken at Council of Europe level, it is important
to send out coherent messages to member states and to thoroughly
co-ordinate different activities (standard setting, promotion and
assistance, etc.) in the fields of protection of children’s rights
and the protection of the freedom of expression (including via the
Internet).
42. All member states should be ready to apply the most far-reaching
measures to fight the production, dissemination and consultation
of child abuse images, including the blocking of websites containing
illegal contents wherever required and appropriate. Public authorities
of member states should be ready to impose such complementary measures
against the powerful arguments of the Internet industry which sometimes claims
the right to “Internet freedom” to avoid in their view complicated
and costly proceedings to block the access to illegal websites.
Nevertheless, priority should be given to measures to ensure the
identification of websites hosting child abuse images, followed
by the rapid removal of these images and the identification and criminal
prosecution of offenders. Only where this cannot be ensured in an
acceptably short timeframe, which is to be defined, should blocking
come in as an additional measure. Blocking should be undertaken
in the most transparent and democratic manner through relevant supervised
procedures, safeguarded against their abuse, ensuring the protection
of private data and providing for relevant complaint mechanisms.
43. Any measure taken against child abuse images should further
be part of comprehensive national and international strategies against
the sexual abuse and exploitation of children, which take into consideration both
the local and global dimension of the issue, which involve both
legal and political measures, and which reinforce formal and informal
international co-operation in this field, as well as close co-operation
with the private sector. Whilst looking into specific problems,
such as child abuse images or child sex tourism, all stakeholders
involved must remain committed to resolving the root causes of child
sexual abuse. More resources should be made available for research
into child sexual abuse phenomena, their causes and the support
to be given to victims, as well as to police and social services
to investigate child abuse cases and prevent future abuse. These
resources should also be used to initiate strong victim-centred
approaches, including the institutional settings required (dedicated
victim identification units), because the identification of victims
and offenders is the only means to definitely halt the abuse linked
to child abuse images. With a view to preventing offences related
to child abuse images in the first place, the role of the educational
sector is a crucial one from an early age onwards.
44. Although some self-regulation and reporting action is already
undertaken by Internet Service Providers and other companies, any
private action following proactive approaches should be encouraged
by public authorities. At the level of the Council of Europe, the
matter of legal responsibility of private companies, especially
Internet Service Providers should be further explored in the framework
of the competent intergovernmental bodies.
45. Society as a whole must be made aware of the fact that the
increasing “sexualisation” of children in the context of the media
and advertisements is one of the factors stimulating the production
and consumption of child abuse images. Any “sexualisation” of children,
in the media and elsewhere, is therefore to be avoided and combated
as it is a first step towards representing our children as sexual
objects, making them vulnerable to abuse and exploitation by individual
sex offenders and groups of criminals. However, children’s rights
and child abuse images as a criminal offence should be given more
attention and prominence in the media.
46. Finally, our children themselves must be educated in a way
which makes them aware, in a child-friendly manner, of dangers to
their physical and mental integrity. They should be empowered to
protect themselves when they can, and solicit the help of adults
they can trust when they need to. This, however, must never absolve
adults in charge of child care and public decision-makers from taking
full responsibility for the protection of children in their care.