Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA

Online threats to children can originate from anywhere in the world. Response to such threats requires international cooperation and common frameworks through which criminals can be investigated and prosecuted.

One difficulty when dealing with international legal instruments is that national legislation may be inconsistent from country to country, especially when international frameworks need to be transposed into national law.

In the European Union, this issue has been mitigated through a harmonised approach. Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating sexual abuse and sexual exploitation of children, and child pornography, which replaced the Council Framework Decision 2004/68/JHA, harmonises the offences relating to child sexual abuse including child sexual abuse content, and identifies the crimes as falling under four categories:

• sexual abuse, such as engaging in sexual activities with a child who has not reached the age of sexual consent or forcing them to submit to such activities with another person;
• sexual exploitation, such as, for example, coercing a child to engage in prostitution or to participate in pornographic performances;
• child pornography: possessing, accessing, distributing, supplying or producing child pornography;
• the solicitation of children online for sexual purposes: proposing, via the Internet, to meet a child for the purpose of committing sexual abuse and, through the same means, soliciting the child to provide pornographic material of themselves.

The Directive also lays down a minimum level for criminal sanctions, and aims to prevent offenders convicted of child sex crimes from exercising professional activities involving regular contact with children.

Child sexual abuse material needs to be reported and removed immediately. This allows local enforcement agencies to identify the victims, and prevents the revictimisation of children every time the material is viewed online. The Directive therefore obliges member states to ensure that sites hosting such material within their territory are promptly removed, and to strive to remove those hosted abroad.

Directive 2011/93/EU – which finds its basis under Article 82 (2) and Article 83 (1) of the Treaty on the Functioning of the European Union – entered into force on 17 December 2011; the deadline for transposition by member states was 18 December 2013.

By mid-2015, six EU member states had not yet adopted legislation to comply with all the provisions of the Directive. In July, the European Commission formally requested Greece, Italy, Malta, Portugal, Romania, and Spain to communicate all the national measures that were undertaken to ensure full implementation of the Directive. Failure to comply can lead the Commission to refer the countries to Court of Justice of the European Union (CJEU).