The study ‘Balancing the right to privacy with the children's right to protection from online sexual exploitation’ by terre des hommes Netherlands finds that interference with the right to privacy to combat sexualised violence against children is legally justified under certain conditions. For their study, the authors examined the European Commission's proposed Regulation on combating and preventing online sexual violence against children of 2022, considered its influences and interactions with fundamental privacy rights and analysed case law of the Court of Justice of the European Union and the European Court of Human Rights.
With its proposal of a regulation, the European Commission is pursuing the objective of preventing and combating the increasing sexualised violence against children online. To this end, service providers are to be obliged to carry out risk assessments and take adequate precautionary measures. If these are deemed insufficient, detection orders could be issued regarding child sexual abuse material (CSAM). Several authorities would be responsible for issuing such orders. This should ensure that interferences into privacy are proportionate and targeted and that only the necessary data of potential offenders is affected.
This takes into account the requirements of possible limitations to the right to privacy, which is not absolute. Accordingly, the right can be restricted if this is required by law, preserves the essence of the right to privacy, is necessary to protect other rights and is proportionate. The authors of the study by terre des hommes Netherlands come to the conclusion that the European Commission's proposal fulfils these requirements. For example, a detection order would be legally justified and would preserve the essence of the right to privacy if it were limited to the data necessary to investigate sexualised violence against children online. It also pursues other fundamental rights with the protection against sexualised violence and exploitation and could therefore justify the interference with the right to privacy if implemented proportionately.
The comprehensive study can be viewed here. In addition to the legal considerations, it also provides current data on the extent of sexualised violence against children online as well as information on various technical procedures for protection and detection.