Open Letter to LIBE-committee Members

This is an Open Letter to the Members of the European Parliament.


LIBE Committee
European Parliament
Rue Wiertz
1047 Bruxelles



Directive 2010/64(COM 2010/94) - Malmström Directive - Angelilli Report

Dear Members of the European Parliament,


MOGiS e.V. is a German association of victims of sexual
child abuse
. MOGiS was founded because society usually only talks
about - not with - victims of sexual abuse and sexual exploitation.


We believe that, as victims, we are experts in our own right. We
think that any legislative process that tries to tackle the problem
of sexual child abuse without talking to the victims is bound to
fail. Therefore, in anticipation of the discussions on the draft
Directive on Child Exploitation, we would like to provide you with
some brief comments.


We believe that before any new legislation is created it
should be clear that: a) the (perceived) problem to be tackled
is properly defined and understood, b) the goal of the
legislation is properly defined
c) the introduced measure is
to reach the goal and doesn’t do more harm than


We do not believe this to be the case in relation to key parts of
draft directive 2010/64. We will concentrate on five key themes:



    1. The lack of proper research prior to the proposition of the


    1. The problematic definitions of "child" and "child


    1. The planned mandatory introduction of a blocking infrastructure in
      the EU


    1. The criminalization of solicitation in order to dissuade offenders


    1. The help for victims



I) The lack of proper research prior to the directive being


The entire proposal gets off to a bad start, making it clear that it
is based on suppositions rather than facts: “Despite a lack of
accurate and reliable statistics, studies suggest that [...] and
research also suggests that this phenomenon is not decreasing over
time [...].”


Continuing in the same vein, the Commission considered that, despite
the recognized absence of such information, external expertise was
not seen as necessary: “- Collection and use of expertise: There
was no need for external expertise.”


This is a little surprising, particularly if we consider the findings
of the Commission-financed European Financial Coalition, which
indicate that certain types of crimes regarding child exploitation on
the Internet are in fact declining.


II) The problematic definitions of "child" and "child


Although the proposal refers to the European definition of youth,
namely “children and young people between the ages of 13 and 20”
in its introduction, the terminology and goals of the rest of the
document fail to adequately reflect this differentiation.


When fighting abuse it is essential to differentiate between "child"
and "adolescent" (youths). "Youth protection"
needs to have a different focus from "Child protection".
Defining every person under 18 might work in the context of "right
of the child" but it clearly does not in the context of "sexual


Also for various reasons the term "child pornography" is
very problematic in our opinion, the most important of which being
that these representations have nothing in common with the usual
definition of the word "pornography" which refers to
consensual acts between adults, whereas the term "child abuse
images" would be more appropriate for the problems the draft
directive tries to tackle.


Also in the interests of sending a signal to people watching this
content, you should make clear they are not watching some sort of
"pornography" – what they are looking at is the evidence
of a crime. So to get the message across it should be always be
called "child abuse images" or "child abuse material"
or similar.


As for protecting a person under 18 who has reached the age of legal
sexual consent from acting in pornographic depictions we encourage
the European Parliament to adopt a solution similar to the Chapter 18
U.S. Code § 2257 “Record keeping requirements” for any
material that is being produced or distributed from an EU member
state. This would also free law enforcement unit from chasing down
pornography with actors “appearing to be a ‘child’ ” (a
person appearing to be under 18 in the draft directive).


III) The planned mandatory introduction of a blocking


Deletion and investigation of such sites should always be prioritized
ahead of blocking, and this is also true for this Directive. In any
event, access restrictions in general should be seen as a subject
matter that is covered by subsidiarity, under the condition that any
such policy implemented by Member States be subject to a specific
national law.


The restrictions described in Article 10 of the European Convention
on Human Rights (which covers "Freedom of Expression")
clearly require a legal basis for interferences such as "internet


Lawless situations which rely on corporate contract clauses in
Scandinavia and in the United Kingdom are incompatible with this


The creation of a legal basis for these measures is therefore the
absolute minimum that should be demanded. A second important
criterion would be the involvement of a judge with a proper ruling
which would provide a justification for the blocking.


Nonetheless, MOGiS e.V. stresses that even though we are victims of
sexual exploitation themselves we reject blocking in principle and
believe that it represents a danger for democratic societies.


Especially for victims, the Internet is a very important tool. It
allows us to share our hope and sorrow. For this to be possible we
need anonymity and confidentiality. These characteristics of the
internet are at risk with the technology that is being proposed for
internet blocking.


Also we don’t want there to be any excuse for not acting
– neither for the police nor any of the other stakeholders
involved. Also we don’t want to give EU member states a means to
hide their inaction and the failure of international cooperation
on fighting sexual child exploitation


IV) The criminalization of solicitation in order to dissuade


The deterrent effect of penalties in this area of criminality is
negligible (unless the penalty was the death penalty or life


Any perpetrator already has to overcome the danger of social
revulsion and alienation if found guilty, unless he/she is acting


At the point where a person decides to sexually abuse a child, i.e.
before the actual solicitation of the child, the calculated risk of
social alienation and punishment has already been taken into account.


A further problem with Article 6 of the proposal is that it seeks to
punish the person’s intention (although, strangely, only if
communicating via a telecommunications network). Such an intention
will be very difficult to either prove or disprove.


The proposal’s intention is undoubtedly good, but it will not
dissuade perpetrators (who are experiencing a particular urge to seek
contact with children) but might create a climate that scares
completely normal people who do not want to run the risk of being
branded with the allegation of being a child abuser.


In this way, it could happen that children would be deprived of the
healthy human contact that they need in order to avoid slipping into
abusive relationships. Perpetrators can exploit this and will
continue to present themselves as trustworthy friends.


We want adults to be available for when children need them. So we
have to make sure that we don’t introduce any legislation that does
more harm than good.


At the moment we don’t believe that this problem can be fixed in
the very limited time frame that this proposal now has to be finished
– so in our opinion solicitation should be dropped from the


V) The help for victims


Help and therapy for victims should not be subject to their
willingness to go to court. Also, it should always be the decision of
a victim whether he or she wants to testify at the police or in front
of a court or not.


We at MOGiS e.V. think that the proposal should become more clear in
that respect.


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