On December 2, 2008, the European Court of Human Rights released a decision concerning the prevention of online child exploitation. The decision, K.U. v. Finland, 2 Dec 2008, App No. 2872/02, held that the Finnish government violated the right to private life of a 12-year old boy when it failed to update its telecommunications laws, which prevented internet service providers from disclosing to police the identity of an individual who advertised the 12-year old on a dating site without the boy’s knowledge.
The court relied upon an earlier precedent that held that “private life” covered the physical and moral integrity of a person, and highlighted the vulnerability of the boy due to his young age as well as “the potential threat to the applicant’s physical and mental welfare brought about by the impugned situation” (para. 41) Further, the court reiterated that the right to private life (Art. 8 of the European Convention on Human Rights) places not only a negative obligation on states to abstain from interference, but additionally required a positive obligation to enact criminal-law sanctions to deter “grave acts, where fundamental values and essential aspects of private life are at stake.” (paras. 42-43)
The technology law angle to this case illustrates the difficulty in identifying online child exploitation perpetrators. To that extent, the Ontario legislature recently passed Bill 37, Child Pornography Reporting Act, 2008, which requires mandatory reporting of child pornography. While such a requirement is undoubtedly well-intentioned, there are nevertheless concerns about possible unintended consequences of casting such a wide net.
Over at slaw.ca, there was an interesting comment thread concerning the pragmatic difficulties of such obligations: namely, imposing burdensome obligations on system investigators, and difficulties of identifying borderline child porn cases. Such concerns result in fears that police will be inundated with false alarms.
While it seems appropriate to require ISPs to disclose the identity of online child exploiters as the European Court of Human Rights has found, it remains to be seen whether a broad obligation of mandatory reporting on all citizens is the correct approach. Although the efforts of politicians to address this growly problem are to be applauded, it seems that obligations should be carefully tailored to stem the intended crime, without creating undue liability for those who cannot actually impact the exploitation of victims.