Child Pornography - Home | National Rapporteur on Trafficking in ...

Implementation
on Cybercrime of the Council of Europe 813 and the Electronic Commerce Directive of the EU 814 . 815 Since
ISPs now facilitate access to the Internet for many consumers, there is increasing pressure on the ISPs
to take measures, of their own accord, to prevent the distribution of child abuse material. 816 Preventive
measures that have been proposed include the recording of the identity of the operator of a website and
the installation of filters when uploading content, which are both to be carried out by hosting providers,
and measures such as data retention, the recording of users, blocking access to websites containing
child abuse material, and blocking the distribution of documents containing such material, which are
to be carried out by access providers. 817 Certain proposals are already being applied. For example, ISPs
are already limiting access to certain newsgroups within Usenet. 818 On the one hand, ISPs are regarded
as organisations that may be able to fulfil a key role in tackling child pornography, 819 whereas on the
other hand the measures stated above may violate fundamental rights of users, may not be effective
and/or may entail high costs. 820 The character of the Internet (see §1.2.3) makes clear that self-regulating
measures on behalf of ISPs are most effective whenever they are applied on an international level as opposed
to on an individual or national level. This type of international partnership should also be able
to contribute to the identification of mala fide ISPs 821 . In addition to ISPs, the Internet Corporation for
Assigned Names and Numbers (ICANN) also plays a role in managing the (technical) infrastructure of
the Internet. 822 For this reason, following remarks from an Interpol employee that the identity details
(Whois) are not always accurate 823 , ICANN and Interpol have announced a partnership to improve Internet
safety and combat cyber-crime, including, among other offenses, that of child pornography. 824
The manner in which this partnership will be compiled is not yet known. In addition to this, ICANN has
recently introduced the.xxx extension for (adult) pornographic websites. It is expected that this exten-
813 See Articles 16 and 18-20 of the Cybercrime Convention of the Council of Europe.
814 The removal of child abuse material following notification is based on Article 14 of the EU Electronic
Commerce Directive. This is often the case in the event of a notice and take-down policy, see Van Eijk
& Van Engers, 2010, p.35.
815 Van Eijk & Van Engers (2010, p.38) write: “Governments have played a clearly stimulating role in the development
of the current reporting system, and also provide (financial) support. As a rule, there is positive consensus for
the existing system of internet service providers with relation to child abuse material. However, in so far as cases of
a more drastic nature are concerned, such as filtering, it follows from national law that a statutory basis is necessary
(see the discussion in the Netherlands regarding filtering). However, the drastic nature of filtering, as such, can
mean that it is desirable to place it within a more clearly-defined legal framework, for example for reasons of legal
certainty.”
816 Taylor & Quayle, 2003, pp.202-203.
817 Gercke, 2009, pp.65-72; Hecht, 2008, p.89.
818 The newsgroups that, when together, form Usenet are not actually part of the Internet, see Jenkins,
2001, pp.54-57.
819 Taylor & Quayle, 2006, pp.188-189.
820 Gercke, 2009, pp.65-72.
821 Taylor & Quayle, 2003, p.203.
822 Solum, 2009, pp.48, 59-61.
823 ‘<strong>Child</strong> abuse cop slams ICANN’, The Register, 17 March 2011, www.theregister.co.uk/2011/03/17/child_
abuse_cop_slams_icann/ (viewed 12 August 2011).
824 ‘INTERPOL and ICANN advance cooperation on Internet security after historic first meeting’, Interpol,
23 May 2011, www.interpol.int/Public/ICPO/PressReleases/PR2011/PR043.asp (viewed 12 August 2011).
265