EUROPEAN COMMISSION

Strasbourg, 6.2.2024

SWD(2024) 33 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL

on combating child sexual abuse and sexual exploitation and child sexual abuse material, and replacing Council Framework Decision 2004/68/JHA (recast)

{COM(2024) 60 final} - {SEC(2024) 57 final} - {SWD(2024) 32 final} - {SWD(2024) 34 final}

Table of contents

1. Introduction: Political and legal context

2. Problem definition

2.1 What is/are the problems?

2.2 What are the problem drivers?

2.3 How likely is the problem to persist if there is no EU level action?

3. Why should the EU act?

3.1 Legal Basis

3.2 Subsidiarity: necessity of EU action

3.3Subsidiarity: added value of EU action

4. Objectives: What is to be achieved?

4.1 General objective

4.2 Specific objectives

5What are the available policy options?

5.1 What is the baseline from which options are assessed?

5.2 Description of the policy options

5.4 Conclusion on Policy Options

5.5 Options discarded at an early stage

6What are the impacts of the policy options?

6.1 Qualitative assessment

6.2 Quantitative assessment

6.3 Conclusion on Assessments

7How do the options compare?

7.1 Effectiveness

7.2 Efficiency

7.3 Coherence

7.4 Necessity and Relevance

7.5 Subsidiarity and Proportionality

8Preferred option

8.1 Summary of the preferred option

8.2 REFIT (simplification and improved efficiency)

8.3 Application of the ‘one in, one out’ approach

9How will actual impacts be monitored and evaluated?

1. Introduction: Political and legal context

With the expansion of sophisticated technologies used by child sexual offenders 1 , and children increasingly using the Internet 2 , children are facing more and more risks of being sexually abused throughout their childhood. A global study of childhood experiences in 2021 found that than one in three respondents (34%) had been asked to do something sexually explicit online during their childhood, and more than half (54%) had experienced a form of child sexual abuse online 3 .

The sexual abuse of children can take multiple forms, both offline (e.g. engaging in sexual activities with a child or exploiting a child for prostitution purposes) and online (e.g. forcing a child to engage in sexual activities via live streaming, or viewing or distributing online child sexual abuse images and videos) 4 , with a known individual (e.g a child’s parent, carer, teacher) or an unknown individual (e.g a stranger who grooms a child online).

Children’s best interests must be a primary consideration in every action relating to them, considering that they have the fundamental right to protection and care. Therefore, the fight against child sexual abuse (CSA) is a priority for the EU 5 and is being pursued through a series of EU initiatives. The main policy document is the July 2020 EU strategy for a more effective fight against child sexual abuse 6 (hereinafter, “the Strategy”), where the Commission set out eight concrete initiatives aiming to implement and develop the right legal framework, strengthen the law enforcement response and catalyse multi-stakeholder efforts in relation to prevention and investigation of these crimes and assistance to victims and survivors.

The proposal that this impact assessment accompanies aims to complement the existing EU framework by proposing revised and targeted measures to protect children against the sexual abuse and sexual exploitation and to reinforce support and assistance to victims, by taking into account current and expected technological changes, as well as lessons learnt and best practices in relation to coordination among relevant actors, investigations and prevention. It originates in the commitment undertaken in the Strategy to ‘identify legislative gaps, best practices and priority actions’ and ensure that EU legislation enables an effective response to child sexual abuse, including by amending Directive (EU) 2011/93 on combating child sexual abuse, sexual exploitation and child pornography 7 (hereafter “the Directive”), if needed.

On 13 December 2011, the Parliament and the Council adopted the Directive to strengthen the EU legal framework in this field and replace Framework Decision 2004/68/JHA 8 (hereafter “the Framework Decision”). The Directive is a comprehensive legal framework which covers investigation of crimes and prosecution of offenders, assistance to and protection of victims, and crime prevention. It approximates the definition of a number of offences, sets minimum level for criminal penalties, and facilitates the reporting, investigation and prosecution of the crimes within its scope. It extends national jurisdiction to cover abuse perpetrated by EU nationals abroad, gives child victims easier access to legal remedies and also includes measures to prevent additional trauma from participation in criminal proceedings.

The Directive also facilitates the circulation of information on convictions and disqualifications among different national law enforcement authorities, and improves the management of criminal records by allowing for more reliable checks and controls. The Directive prohibits advertising the possibility of abuse and organising child sex tourism 9 . It provides for education, awareness raising and training of officials and society at large. Member States bound by the Directive 10 (hereafter “Member States”) are obliged to implement and reflect its provisions in their national laws. The deadline for transposition of this Directive was December 13, 2013.

Since 2013, the EU Member States have made significant progress towards full transposition of the Directive, for certain aspects, the Commission opened infringement procedures against 23 Member States in 2019 to ensure conformity. Exchanges between the Commission and Member States are ongoing to ensure that they swiftly address remaining issues. The challenges Member States have faced in the transposition of the Directive concern notably criminal law definitions and offline prevention measures (in particular prevention programmes for offenders and for people who fear that they might offend).

In 2022, the Commission conducted an evaluation to assess the implementation of the Directive, identifying legislative gaps, best practices and priority actions at EU level. The study 11 shows that the legislative framework presents opportunities for improvement, considering the significant societal and technological changes during the last 11 years. The study highlights notably ambiguity in certain definitions, and problems concerning investigations and prosecution of offenders 12 . Concerns also stem from the exponential growth of online sharing, increased abilities for perpetrators to hide their identity (and conceal their illegal activities), and facilitation in conspiring between perpetrators to avoid accountability and commit further crimes 13 . The increased use of anonymity tools and encryption has enabled offenders to become increasingly sophisticated in their use of technology and technical capabilities, making it difficult to provide swift assistance to victims due to the challenges to investigations that encryption and anonymity tools create.

In general, the evaluation shows 14 that even with complete transposition of the 2011 Directive, child sexual abuse 15 crimes are not adequately addressed in the EU due to challenges in their investigation, reporting and action by relevant service providers, as well as insufficient prevention and assistance to victims.

Current and future legal framework

The existing legal framework consists of measures in the areas of criminal law, protection of privacy and personal data, and the internal market.

It includes:

·sector-specific legislation, such as the Interim Regulation derogating from the application of certain rights and obligations under the ePrivacy Directive, 16 and the Anti-Trafficking Directive 17 ;

·horizontal instruments, such as the General Data Protection Regulation 18 and e-Privacy Directive 19 and its proposed revision 20 , and of the single market for digital services such as e-Commerce Directive 21 and the Digital Services Act 22 , as well as the Victims Rights Directive 23 , and the UN Convention on the Rights of Persons with Disabilities.

Upcoming legislation includes:

·sector-specific legislation, such as the proposed Regulation laying down rules to prevent and combat child sexual abuse 24 , the proposed revision of the Anti-Trafficking Directive and the Proposal for a Directive on Combating Violence against Women and Domestic Violence. 25

·horizontal legislation, such as the revision of the horizontal Victims’ Rights Directive that applies to all victims of all crimes, including those covered by sector-specific legislation.

Sector specific legislation

Regulation (EU) 2021/1232 26  (Interim Derogation from certain provisions of Directive 2002/58/EC)

·What it does: The legislation enables providers of certain number-independent interpersonal communications services (‘providers’) to process personal and other data to the extent strictly necessary to detect online child sexual abuse on their services and report it, and to remove online child sexual abuse material from their services, provided the use of specific technologies by the providers is lawful. The Interim Regulation provides for derogations from Articles 5(1) and 6(1) of Directive 2002/58/EC on privacy and electronic communications (ePrivacy Directive). 27  

·How CSA-related responsibilities are distributed between EU and Member States: the Commission is responsible mainly for organisation aspects such as providing lists of relevant stakeholders and providing an evaluation of the functioning of the law after a few years. Member States are in charge of implementing the regulation, notably responsible for enforcing it, and also for providing statistics related to the detection, reporting and follow up of the CSA reports.

·How the CSA Directive builds on and interacts with the Interim Regulation: The CSA Directive and the Interim Regulation on voluntary measures to detect, report and remove child sexual abuse have different scope and legal basis. The former is aimed at harmonising the criminal laws of Member States while the latter is aimed at creating an exception from the application of EU legislation with respect to the electronic communication sector.  

The Anti-trafficking Directive (Under Revision)

·What it does: The Anti-trafficking Directive provides for an overarching framework at the EU level to prevent and combat trafficking in human beings and to protect its victims. It sets binding minimum rules on the definition of criminal offences and the level of sanctions in the area of trafficking in human beings. The Directive also introduces common provisions to strengthen prevention as well the protection of victims. It is currently under revision and will be adopted before Q3 of 2023.

·How CSA-related responsibilities are distributed between the EU and Member States: as a sector-specific instrument, the Anti-trafficking Directive and its Revision cover child sexual exploitation as a purpose of the trafficking offence. When the conduct involves a child, it is considered as a trafficking offence even if none of the means set out in the definition of trafficking in human beings has been used. The main function of the Anti-trafficking Directive and its Revision is to combat the trafficking of human beings, which affects both adults and children.

·How the CSA Directive builds on and interacts with the Anti-trafficking Directive: The CSA Directive and the Anti-trafficking Directive may both apply to certain offences, as some victims of human trafficking have also been victims of child sexual abuse or sexual exploitation.

Horizontal instruments

The General Data Protection Regulation (GDPR) and the Law Enforcement Directive (LED)

·What it does: the GDPR sets out rules on the processing of personal data relating to individuals, specifying the fundamental right to protection of personal data. The LED sets out rules with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data.

·How CSA-related responsibilities are distributed between EU and Member States: as a horizontal instrument, the GDPR does not contain CSA-specific provisions, but it applies to all activities of processing personal data, including those related to CSA, except for those carried out by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, which are covered by Directive 2016/680/EU on the Protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data.Member States are primarily responsible for enforcement through their data protection and courts authorities, and the European Data Protection Board (EDPB) is tasked with the consistent application of data protection rules.

·How the legislation builds on and interacts with the GDPR: The CSA Directive coexists and complies in line with the GDPR and the LED, ensuring safeguards for the protection of the processing of personal data.

The ePrivacy Directive and its proposed revision

·What it does: Directive 2002/58/EC on privacy and electronic communications, as amended by Directive 2009/136/EC (‘ePrivacy Directive’) 28 ensures the confidentiality of users’ electronic communications and personal data in the electronic communications sector. In 2017, The European Commission adopted the ePrivacy Regulation proposal, 29 which is currently under trilogue negotiations. The ePrivacy Regulation will enhance the protection of rights for users of all electronic communications services and the protection of their terminal equipment. It will also complete and further harmonise the privacy rules in the European single market and overcome fragmented implementation of the Directive. These rules particularise and complement the GDPR.

·How CSA-related responsibilities are distributed between EU and Member States: the ePrivacy Directive and the proposed ePrivacy Regulation do not contain CSA-specific provisions; they lay down the rules for ensuring the right to privacy and confidentiality in the electronic communication sector.

·How the legislation builds on and interacts with the ePrivacy Directive and its proposed revision: The CSA Directive could by extension, lead to national investigative authorities’ request for telecommunications data which in turn would have to comply with the rights and obligations which are currently in the ePrivacy Directive, notably those on the confidentiality of communications and related data.

The Digital Services Act 

·What it does: the Digital Services Act (DSA) provides a horizontal framework of due diligence obligations for content moderation by providers of intermediary services. It removes a number of disincentives for providers’ voluntary efforts to detect, remove or disable access to illegal content (including child sexual abuse material, CSAM) and creates obligations for them to provide information on their content moderation efforts, including when requested by national authorities.

·How CSA-related responsibilities are distributed between EU and Member States: as a horizontal instrument covering all types of illegal content, the DSA does not contain CSA-specific provisions. The DSA creates a framework at EU level for the notification of materials noticed by users to providers, with obligations for providers to respond to orders issued by public authorities in Member States, as well as additional due diligence requirements for very large platforms. For the very large platforms, the Commission is the sole enforcement authority that is to ensure compliance with systemic obligations by providers of very large online platforms and very large online search engines.

·How the legislation builds on and interacts with the DSA: the CSA Directive coexists with the DSA and in particular provides legal definitions for offences of online child sexual abuse.

The Victims’ Rights Directive (Under Revision)

·What it does: the Victims’ Rights Directive establishes minimum standards on the rights of, support for and protection of victims of crime and ensures that they are recognised and treated with respect. They must also be granted access to justice.

·How CSA-related responsibilities are distributed between the EU and Member States: as a horizontal instrument, the Victims’ Rights Directive and its revision, applicable to all victims of crime, does not contain CSA-specific provisions. The EU adopted specific rules for victims of child sexual abuse and sexual exploitation under the Child Sexual Abuse Directive to respond more directly to the specific needs of those victims.

·How the legislation builds on and interacts with the Victims’ Rights Directive: The CSA Directive and the Victims’ Rights Directive and its revision focus on strengthening the prevention of child sexual abuse as well as more effective investigation and prosecution, taking into account the cross-border nature of the phenomenon.

The UN Convention on the Rights of Persons with Disabilities (UNCRPD)

·What it does: The UNCRPD is an integral part of the EU legal order. The EU and all its Member States are party and are bound by its obligations to the extent of their respective competences. The UNCRPD’s purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

·How CSA-related responsibilities are distributed between the EU and Member States: as a horizontal instrument, the UNCRPD does not contain CSA-specific provisions.

·How the legislation builds on and interacts with UNCRPD: Both legislations aim to ensure and protect children with disabilities, with the UNCRPD focusing on the protection of children with disabilities in Articles 7, 13 and 16, while the CSA Directive focuses mainly on protecting children from sexual violence, and investigating and prosecuting all cases of child abuse.

Proposed and upcoming legislation

Proposed Regulation of the European Parliament and of the Council on preventing and combating the sexual abuse and sexual exploitation of children

·What it does: it sets out harmonised obligations for certain online service providers to prevent, detect, report, block and remove child sexual abuse online in order to tackle child sexual abuse online more effectively and provide for more legal certainty in the internal market. The proposed legislation does not merely focus on online child sexual abuse material and grooming-as if adopted, the Proposal would establish an EU Centre to prevent and counter child sexual abuse to facilitate compliance with those obligations, and to act as a facilitator to prevent and combat online and offline child sexual abuse. The Proposal is an internal market instrument and therefore does not contain rules of criminal law in relation to CSA-related crimes.

·How CSA-related responsibilities are distributed between the EU and Member States: If established, the EU Centre's primary task is to facilitate the application of the obligations imposed on service providers under the proposed Regulation, including by assisting the competent authorities of the Member States. In addition, given its central role, the EU Centre would serve as an expertise hub and facilitate the exchange of best practices and lessons learned. Each Member State will designate an authority competent to ensure the application and enforcement of the proposed regulation.

·How the legislation builds on and interacts with the Proposed Regulation on preventing and combating the sexual abuse and sexual exploitation of children: The Proposed Regulation focuses on setting out obligations on relevant online service providers. On the other hand, the CSA Directive focuses on setting out obligations on Member States, notably on the definition of offences and level of penalties, given its legal basis (Art. 82(2) and 83(1) of the TFEU. Under this legal basis it is not possible to directly regulate online service providers, nor to set up a centre to steer and support efforts in this regard. Both legal instruments interact as follows:

oFirstly, the Proposed Regulation utilizes and refers to the criminal offences present in the CSA Directive, notably on the definition of child sexual abuse material and of grooming.

oSecondly, the definitions of criminal offences are key to help law enforcement determine and label new/previously unseen pieces of material (pictures, videos, text etc…) as the child sexual abuse material under EU law. This will then serve as indicators for the companies, who will use the indicators (otherwise known as ‘hashes’) throughout respecting their detection obligations on known child sexual abuse material, and the basis for the removal and blocking orders.

oThirdly, the Proposed Regulation will facilitate the work of Member States thanks to the potential creation of the EU Centre, which will facilitate the exchange of best practices on prevention and assistance to victims. The Proposed Regulation does not introduce any new obligations for Member States on prevention and assistance to victims, beyond those already present in the CSA Directive.

Proposal for a Directive on combating violence against women and domestic violence

·What it does: The Proposal for a Directive on combating violence against women and domestic violence lays down measures related to (i) the definition of criminal offences and penalties in the areas of sexual exploitation of women and children (both boys and girls), as well as computer crime, (ii) the rights of victims of all forms of violence against women or domestic violence before, during or after criminal proceedings, and (iii) victims’ protection and support.

·How CSA-related responsibilities are distributed between EU and Member States: The Proposal will ensure that Member States focus on defining criminal offences and penalties including countering sexual exploitation of women and girls, and will ensure the support of victims throughout criminal proceedings.

·How the legislation builds on and interacts with the Proposal: The CSA Directive does not provide for a specific gender-based dimension, both in terms of offences and specific prevention, assistance, support and protection of victims. The Proposal is complementary in this respect, since it provides for new measures and standards that enhance the rights of victims of gender-based violence, including CSAE, whose victims are predominantly girls according to relevant statistics 30 .

Relevant Sustainable Development Goals (SDGs)

The most relevant SDGs for this initiative are 5.2. (eliminate all forms of violence against women and girls), and 16.2.(end abuse, exploitation, trafficking and all forms of violence against children).

Other SDGs of particular relevance are those that address risk factors of CSA, such as SDG 1 on poverty (e.g. children forced by their parents to be sexually abused online), SDG 3 on health (e.g. given the short and long-term negative health consequences of CSA on children), SDG 4 on education (e.g. provisions on prevention mechanisms to raise awareness of CSA online risks), and SDG 9 on industry, innovation and infrastructure (e.g. as the initiative aims to support service providers efforts to fight against CSA online, including through definitions of online child sexual abuse and exploitation).

2. Problem definition

Table 1 shows the intervention logic (problem, drivers, objectives and options) that will be described and analysed in the impact assessment:

2.1 What is/are the problems?

2.1.1 Definition and magnitude

Notwithstanding the 2011 CSA Directive, children in the EU are not protected effectively enough against sexual abuse and exploitation, due to persisting challenges related to

·prevention, in particular due to a lack of prevention programmes for offenders and for people who fear that they might offend; 

·a lack of criminalization of certain actions that have emerged as modi operandi since the adoption of the original Directive;

·the definitions of some offences and the associated level of penalties may benefit from additional clarity as experience has shown that they have led to divergent interpretation in different Member States;

·limited possibilities and police resources for investigation and prosecution; 

·assistanceand support measures for child victims are not sufficient to ensure a full protection of children.

Some Member States employed transposition measures which were not mandated by the Child Sexual Abuse Directive, but which proved effective in the fight against child sexual abuse 31 . It is time to take stock of the lessons learnt from the process of transposition and implementation of the 2011 Directive and to turn best practices into EU-wide standards whenever appropriate.

Prevalence

At least one in five children falls victim to sexual violence during childhood 32 . This includes sexual touching, rape, sexual harassment, grooming, exhibitionism, exploitation in prostitution and pornography, online sexual extortion and coercion. A global study of childhood experiences in 2021 found that more than one in three respondents (34%) had been asked to do something sexually explicit online during their childhood, and more than half (54%) had experience a form of child sexual abuse online 33 . A recent survey in Spain concluded that two out of five Spanish adults suffered sexual abuse when they were children 34 .

The majority of victims are girls, who are more than twice as likely to be abused than boys 35 .

Vulnerable children 36 are more likely to fall victims of CSA online. The recent survey about childhood experiences 37 also found that:

·59% of respondents who identified as transgender and non-binary experienced online sexual harm, compared to 47% of cisgender 38 respondents;

·65% of respondents who identified as LGBQ experienced online sexual harm, compared to 46% non-LGBQ+ people;

·57% of respondents with disabilities experienced online sexual harm, compared to 48% of respondents without disabilities.

In addition, existing support measures do not effectively cater to particularly vulnerable children, such as child victims who have disabilities, children in migration, and children with gender-based vulnerabilities 39 .

The scale of CSAE has showed no sign of decline in recent years. Although important gaps in terms of available statistics on CSAE were identified during the study, estimates on CSAE trends can be derived from data available in some individual Member States and/or on specific CSAE offences.

For instance, statistics available in Germany, Italy, and Romania show that CSAE offences have been continuously growing in recent years.

Trends in CSAE offences in Germany 40 , Italy 41 and Romania 42

According to UN-CTS trend data, child pornography offences in the EU nearly doubled from 2014 to 2019. Assuming that such trends will evolve in line with the previous period, it can be expected that the next 5 to 10 years will continue to see an increase in CSAE-related offences. The figure below illustrates the evolution of the number of child pornography offences over the next years if it maintains the growth rate recorded from 2014 to 2019.

Child pornography, number of offences per 100,000 population 43

Overall, stakeholders consulted during the study agreed that CSAE-related offences will increase in the next 5 to 10 years. 44 Such increases in scale were stated to be strictly related to technological and social developments, which are also expected to facilitate and enable new forms of CSAE, as well as to pose new challenges to victims’ protection of child victims.

“Offline” and online CSA

The sexual abuse of children can take multiple forms, both offline (e.g. engaging in sexual activities with a child or exploiting a child for prostitution) and online (e.g. forcing a child to engage in sexual activities via live streaming, or viewing or distributing online child sexual abuse images and videos). The offline and online aspects of the crimes have become increasingly intertwined, and most CSA cases today contain an online component 45 . For example, an offender may abuse a child offline, record the abuse, and share it online. Or the offender may establish a first contact with children online and then lure them to meet offline and sexually abuse them 46 . It is therefore not possible to separate categorically between online and offline.

Interlinkages between detection, reporting and action, prevention, and assistance to victims

In addition to the online-offline interlinkages, all the different areas of the problem are also closely related: detection, reporting and action (i.e. follow up to the reports, including removal by service providers and action by law enforcement), prevention, and assistance to victims. In general, for public authorities to be able to act and assist the victim, the crime has to be detected and reported, which in turn may prevent future crimes from happening (e.g. if the offender is arrested and granted access to a prevention programme and the victim is rescued). This also applies to detecting grooming and to stopping the circulation of CSAM (known and new), which are both criminal behaviours.

The distribution of CSAM is a form of re-victimisation that occurs every time the images and videos are seen. The knowledge that the images and videos are being distributed is a continuous source of distress for victims. In addition, recent surveys indicate that the viewing of CSAM can lead to hands-on abuse 47 . When CSAM is detected by service providers and investigated by law enforcement, it frequently leads to stopping ongoing or future abuse of child victims by the offenders caught distributing CSAM and/or grooming the child.

National and cross-border challenges.

The fight against child sexual abuse is hampered by both national and cross-broder challenges. Both national difficulties and differences among Member States legislative frameworks can lead to an EU-wide under-performance in the fields of prevention, investigation and prosecution of child sexual abuse and exploitation offenses.

In relation to prevention, the monitoring of the implementation of the Directive has shown significant divergencies in the approach taken by different Member States, and significant challenges in the setting up of specific prevention programmes, in particular, targeted at potential offenders and offenders at risk of re-offending. These programmes are national in nature. However, failure to adopt effective and dedicated prevention measures in one Member State has consequences for all others, given the cross-border nature of child sexual abuse and exploitation. In the face of the phenomenon of travelling offenders and of the rise of online abuse and exploitation, a failure to establish effective offender-side prevention in one Member States can easily lead to EU-wide consequences, i.e. to the commission of further offenses in another Member States.

As a cross-border crime, child sexual abuse requires cross-border investigations. If not all forms of child sexual abuse are criminalised in all Member States, cross-border cooperation on investigations becomes challenging. Hence, it is crucial to ensure that the Directive minimum definition of what constitutes child sexual abuse and exploitation in the Union includes new trends, such as live-streaming, abuse in virtual reality settings and the dissemination of paedophile manuals online.

In addition, the Directive contains a provision on effective investigation and prosecution of child sexual abuse, but significant divergencies have emerged as to its implementation, in part due to its relatively broad wording. The resulting unavailability of the most effective investigative tools (e.g. undercover investigations on the dark web) in some Member States hampers the collection of evidence and identification of victims and offenders in cross border cases. Moreover, excessively short statutes of limitations in some Member State prevent prosecution of offenses occurred in the past. The lack of prosecution entails the impossibility to include these offenses in the perpetrator’s criminal record, leading to a de facto failure of the cross-border checks that are possible through ECRIS (whose consistent use by all Member States for background checks in this area seem to constitute a challenge in and of itself) and of the system of exchange of criminal records for the purpose of employment. This last consequence is particularly troubling in light of recent studies showing that the level of danger posed by child sexual abuse offenders does not decrease with age. 48

A last point to note is the lack of systematic collection of statistical data on child sexual abuse and exploitation by each Member State. This is linked to the vague wording of the Directive, coupled with the Member States resistance to commit resources to data collection in the absence of a specific obligation to do so. The result of this lack of data is a reduced effectiveness of the fight against child sexual abuse in all its components, from prevention to investigation and effective assistance to victims, both at the national and cross-border level.

Box 1: importance of detection, reporting and action in prevention and assistance to victims

Detection, reporting and action

The proportion of cases where CSA is discovered in a timely manner and prevented or stopped is very limited. Oftentimes, children do not manage to seek help themselves, and those in their ‘circle of trust’ (i.e. family and other close contacts), in charge to provide protection and care, are often the abusers 52 . One in three victims will never tell anyone and at least four in five CSA cases are not reported to public authorities 53 . There are indications that the COVID-19 crisis has exacerbated the problem 54 , especially for children who live with their abusers 55 . In this context, online service providers and in particular ‘online intermediaries’ 56 such as messaging services, online forums, and online platforms (such as video-sharing and media sharing platforms, social networks, etc.) have acquired an important role, as they are often the only ones to have any possibility to detect the ongoing abuse 57 .

The exponential development of the digital world has facilitated the global sharing of materials and the creation of networks of offenders via online intermediaries. The images and videos of CSA continue to circulate long after the abuse itself, and survivors often find themselves powerless to ensure removal of online content depicting their abuse 58 . It is estimated that, at any given moment, across the world there are more than 750 000 individuals online exchanging CSAM, streaming live abuse of children, extorting children to produce sexual material or grooming children for future sexual abuse 59 .

The past few years have nonetheless seen a strong increase in reports of CSA online submitted by online service providers globally through NCMEC: from 1 million reports in 2010 to over 21 million in 2020. The number of reports concerning the EU (e.g. images exchanged in the EU, victims in the EU, etc.) has also dramatically increased: from 17 500 in 2010 to more than 1 million in 2020 60 .

The amount of grooming cases reported globally increased by 98% in 2020 compared to the previous year (37 872 in 2020 vs 19 147 in 2019), presumably due to the pandemic, when both children and offenders spent more time online and at home 61 .

The reports that service providers submitted in 2020 in relation to cases in the EU included 3.7 million images and videos of known CSAM, 528 000 images and videos of new CSAM, and more than 1 400 grooming cases 62 .

Prevention

Prevention is an essential component for tackling CSA at its roots. There are two main types of prevention efforts:

1.Prevention efforts focused on children and their environment and on decreasing the likelihood that a child becomes a victim. Examples include awareness raising campaigns to help inform children, parents, carers and educators about risks and preventive mechanisms and procedures, as well as training, and efforts to detect and stop online grooming.

2.Prevention efforts focused on potential offenders and on decreasing the likelihood that a person offends 63 . Examples include prevention programmes for persons who fear that they might offend, and for persons who have already offended, to prevent recidivism 64 .

Setting out effective prevention programmes remains challenging and statistics on offenders are not collected by Member States for research purposes. Monetary and personnel-related resources are limited and lack coordination, and efforts, where present, are rarely evaluated to assess their effectiveness (see section 2.2.3. on problem drivers).

Convicted offenders may continue to be pose a risk of re-offending after serving their sentences. It is estimated that some 20% of sex offenders on average (with big differences between different profiles of offenders) 65 go on to commit new offences after conviction. Additional measures to reduce the risk of their reoffending (such as exclusion from certain activities involving contact with children, or monitoring) are not always taken, and are difficult to implement if they leave the country 66 . However, research also shows that those who get help are 97% more likely not to offend again 67 .

Assistance to victims

Assistance to victims is essential to mitigate the harm and severe consequences for children’s physical and mental health caused by child sexual abuse.

Victims require both immediate and long-term assistance, before, during and after criminal proceedings and taking into account the best interests of the child. This assistance must be specific, i.e. following an individual assessment of the special circumstances of each particular child victim, taking due account of the child’s views, needs and concerns 68 .

However, immediate and long-term assistance remains limited, not sufficiently coordinated between relevant actors within and between Member States and of unclear effectiveness. This leads to information gaps, hampers the identification and sharing of best practices and lessons learnt and decreases the efficacy of efforts (see section 2.2.3. on problem drivers).

2.1.2 Why is it a problem?

The fact that some child sexual abuse crimes are not adequately addressed in the EU is a problem because it results in victims not being rescued and effectively assisted as soon as possible, children being less protected from crimes, and offenders enjoying impunity. It affects public security in the EU and infringes children’s fundamental rights under the Charter of Fundamental Rights of the EU (Charter) 69 , including the right to such protection and care as is necessary for their well-being, the right to human dignity and the right to privacy.

Additionally, CSA has societal and economic costs. In particular, it contributes to an increased risk of serious mental and physical health problems across the lifespan, and exerts a substantial economic burden on individuals, families, and societies. There are negative consequences at all stages:

·Before the crime is committed: in the absence of proper preventative interventions, individuals who could have been stopped from abusing children may become first-time offenders, offenders are more likely to re-offend, and children are more likely to become victims if they and their carers lack awareness of the threat.

·While the crime is being committed: the consequences of not detecting and addressing the crimes swiftly include prolonged suffering and harm for victims. In addition, it reinforces the perception of impunity, reducing deterrence and facilitating further offending.

·After the crime has been committed: the consequences of not acting effectively after the crime include the inability to provide proper immediate and long-term assistance to victims, with negative effects for victims and society as described above. In addition, it may not be possible to prosecute offenders, which reduces opportunities for rehabilitation before, during and after criminal proceedings to prevent reoffending.

2.1.3 Who is affected and how?

First, children in the EU and elsewhere, who may fall victim to sexual abuse and suffer its negative effects, both in the immediate and long-term 70 . Immediate effects include physical injuries and psychological consequences (e.g. shock, fear, anxiety, guilt, post-traumatic stress disorder, denial, withdrawal, isolation, and grief), sexual behaviour problems and over-sexualised behaviour, academic problems, substance abuse problems, increased likelihood of involvement in delinquency and crime, and increased likelihood of teen pregnancy 71 . Long-term effects include psychological and social adjustment problems that can carry over into adulthood and affect married life and parenthood. They include negative effects on sexual and overall physical health; mental health problems including depression, personality psychotic disorders, post-traumatic stress disorder, self-mutilation, attempted or completed suicide; and relational and marital problems including fear of intimacy and spousal violence.

Secondly, governments and public authorities. The competent public authorities (e.g. law enforcement or governments at national, regional and local levels) dedicate significant resources to act against CSA. In particular, they put in place prevention programmes and measures to assist victims, and conduct investigations after they become aware of possible CSA.

Finally, society in general, given that CSA has consequences not only for the victims, but also for society as a whole 72 . Social costs correspond to the non-monetary consequences of the criminal acts, and include diminished quality of life for society and increased feelings of insecurity among individuals. Economic costs include those of police and judicial services (e.g. criminal prosecution, correctional system), social services, victim support service and victim compensation programmes, education, health, and employment costs.

Box 4: Estimated costs of child sexual abuse

2.2 What are the problem drivers?

2.2.1 The increased online presence of children, and the latest technological developments, raise challenges for law enforcement while creating new opportunities for abuse

Developments in and the spread of information technology have made child sexual abuse more acute in both the offline and online dimensions. Images and videos of child sexual abuse are produced through hands-on abuse and then exchanged and accessed online. The internet has become the main medium for sharing CSAM, as well as for contacting children with the aim of abusing them 77 .

The internet and technology facilitates the exchanges among offenders

The internet facilitates the creation of communities in which offenders share materials and experiences, including on how to avoid law enforcement. Broader Internet penetration and an expanding use of mobile devices make it possible for offenders to misuse technology to contact, groom and abuse children. Additionally, the easy availability of encrypted messaging platforms, peer to peer networks, and easy access to the ‘Darknet’ make it easier for perpetrators to connect, cooperate, evade identification and share child sexual abuse and exploitation material.

A recent study 78 shows that over half of all discussion observed on known offender dark web forums was related to new tools to evade detection and make offending more secure. For example, the study shows that veiled or hidden use of typical grooming or child sexual abuse material (CSAM) terms in gaming has grown over 13% 2019-2020.

Online exchanges among offenders lead to contact with children online

According to a recent research focusing on dark-net online communities of child sexual abuse offenders 79 , contact with other CSAM users is associated with higher likelihood of contacting children online and therefore a higher risk of further offend against children. The desensitisation and normalisation that comes from groups of CSAM users may increase the risk that these individuals will commit further sexual offenses against children.

Sharing of self-generated material has significantly increased

Technology has also facilitated the production and sharing of self-generated material. Up to 88% of self-generated, sexually explicit online content has been taken from its original location and uploaded elsewhere. “Sexting 80 ” behaviour makes adolescents especially vulnerable to abuse. Around 15-40% of young people engage in sexting, using smartphones, messaging apps and lives-streaming technology to explore their sexuality in an increasingly risky online environment 81 . Minors also produce material to boost their online status on particular platforms, seeking likes and other indicators of approval, and in some cases for financial gain.

The Internet Watch Foundation (IWF) reported 82 a 168% increase from 2020 to 2021 globally. Self-generated sexual imagery of children aged 7-10 years old has increased three-fold making it the fasted growing age group. Self-generated content of children aged 11-13 remains the biggest age group for this kind of material, with a 167% increase from 2020 to 2021. The Internet Watch Foundation also found that 46% of self-generated material identified during 2020 was classified as ‘Category A- depicting the most severe form of CSA.

Whereas the first time the material is shared may be consensual, further re-sharing is typically not consensual. In a 2020 survey conducted by Thorn, 1 in 6 children aged 9 to 12 admitted that they had seen non-consensually reshared nudes of other children, up from 1 in 9 in 2019 83 . A separate survey by Economist Impact of 18-20 year olds on their childhood experiences found similar data: 18% of them reported experiencing a sexually explicit image of themselves being shared by a peer without consent 84 .

First time sharing of self-generated material may also be the result of online grooming. In the same survey conducted by Thorn, 50% of the children aged 9 to 17 said that they had sent the nudes to someone they had never met in real life, up from 37% in 2019 85 .

Livestreaming of child sexual abuse enables long-distance abuse

The wider availability of internet connections and their increased speeds and data capacity have facilitated the spread of child sexual abuse via livestreaming.

Livestreaming of child sexual abuse can also take the form of a child groomed/coerced into producing and sharing illicit material of themselves in front of a webcam. Up to 88% of self-generated, sexually explicit content being shared online originated from children coerced into live-streaming these actions.

In many cases, livestreamed abuse is transmitted online in encrypted/private channels and usually no trace is left of the abuse unless recorded by the abuser and disseminated more broadly.

Technology also facilitates the sexual abuse of children for financial gain

The internet has created a marketplace that enables the low-threshold buying and selling of child abuse online. Enabled by technology (e.g. livestreaming, private communication applications, cryptocurrencies), considerable profits can be made with little risk by organised crime groups involved in the trade in child pornography or the direct abuse of children. The growing use of cryptocurrencies (such as Bitcoin) as an alternative payment method ensures anonymity in payment transactions and facilitates offences related to child sexual abuse committed for financial gain. The global annual revenue of CSAM sites is estimated to have more than tripled between 2017 and 2020 86 . Online platforms to be used by adults only for the exchange of explicit adult content, are instead used for the monetisation of CSAM, as some of these platforms fail in preventing access by minors who register with fake identification and sell or appear in explicit videos.

Technology is constantly developing… and constantly creating new threats

The constant development of technology also entails the continuous attempts of misuse by offenders for child sexual abuse purposes. For example, the use of entertainment tools based on virtual reality technology to contact children for the purpose of sexual exploitation. Notably, it has been argued that immersive video games incorporating haptic 87 technologies that enable the delivery of sensation to wearers, may attract those with a sexual interest in children. Child sexual abuse through virtual reality technology has already been documented, but its future developments, implications and impact on children are yet to be fully understood 88 .

Member States dispose of different resources to combat child sexual abuse

The evaluation found that some national LEAs have insufficient expertise in order to effectively investigate cases of online CSAE 89 , which also hinders the EU-wide fight against CSAE. In addition, CSAE related investigations often require specific technological tools which can be expensive and harder for some Member States to afford than others 90 . Not only are there divergent resources and levels of expertise among Member States, but also divergencies in the available budget to fight against child sexual abuse and exploitation. The limited amount of resources available constitutes a horizontal problem-driver for any initiative targeting the public sector, in particular but not only where law enforcement is concerned.

Legislation lags behind technological developments

Studies show that existing rules are limited in scope and do not cover technological developments that pose increasing threats for children becoming victims of sexual abuse, such as text and audio-based CSAM, live streaming, virtual reality and augmented reality CSAM, CSAM deepfakes 91 , the use of digital currencies, and metaverse developments 92 .  

Experts participating in a Commission’s expert workshop on key challenges to fight against CSAE pointed out that the limited and inconsistent coverage of new technological developments across national legislations is linked with the vagueness of existing EU provisions, which do not provide an adequate framework for addressing the online dimension of CSAE, including removal of CSAM online 93 . 

Cyberspace also provides offenders with new opportunities to find, approach and manipulate children under the cover of anonymity. At the same time, national legal systems find it difficult to respond because of the number of actors (users, publishers of websites, internet service providers, and telecom companies) involved in producing and disseminating the information, with different degrees of responsibility and operating in different jurisdictions.

Besides the limited coverage of new forms of online CSAE, some experts also pointed out that the penalties established for CSAE offences committed by means of ICT are too low and not dissuasive enough 94 . The WePROTECT Global Alliance 2019 Threat Assessment for example observed a trend of low sentences for demand-side offenders across jurisdictions that “undermine the gravity of their serious, repeated and sometimes violent” child exploitation and abuse offences 95 . Penalty levels for some crimes, such as possession of child sexual abuse material (CSAM), might be too low to act as a deterrent for perpetrators 96 .

Stakeholders' views on problem driver 1 (Increased online presence of children, and the latest technological developments)

Considering main trends relevant to CSAE, most respondents of the online survey claimed that the number of offences prosecuted related to child pornography (69%, n=22 out of 32), offline CSAE (46%, n=12 out of 26), and online CSAE (66%, n=19 out of 29) increased (by more than 5%) over the past ten years, though the increase appears to be most significant for crimes related to online CSAE and child pornography. The majority of respondents (74%, n=35 out of 47) agreed that CSAE-related offences will increase in the next 5-10 years. Specifically, growing trends will mainly concern the amount of child sexual abuse material (CSAM) circulating online (n=3), dissemination of CSAM through the darkweb (n=12), online solicitation (n=9), including for the production of self-generated content by victims (n=13) and live streaming (n=4).

Many stakeholders (n=6) believe that tech-facilitated means and their ongoing development and use in society represent key threats for the safety of children (n=30), introducing inter alia new forms of child sexual exploitation (e.g. sugaring and survival sex). In particular, they refer to artificial intelligence technologies, like deepfake technologies (n=8), the metaverse (n=2), as well as to malicious uses of tech-based services, like social media and gaming platforms (n=6), often characterised by encrypted communication (n=7), and anonymous online services (n=8), such as cryptocurrency-based payment methods (n=1). Such technological developments pose a serious threat also in light of the diffusion of technological devices and access to social media among many more children and increasingly younger (n=12), combined with a lack of parental control and awareness of the dangers of navigating the web (n=7).

Regarding emerging technological developments, the participants to the targeted interviews were concerned by developments in AI, augmented reality (e.g. the metaverse) and gaming. Interviewees also raised concerns over the proliferation of existing technology, both in terms of the increasing use of technology as well as children accessing technology at an ever-younger age. The lack of parental/caregiver filtering between children and content/interactions facilitated by technology presents new opportunities for offenders to target their victims. Two interviewees also specified the increasing threat posed by organised criminal groups, as the trade of CSAM represents a growing market for criminal organisations to profit. One interviewee posited that offenders are already drawing from organised criminal groups and adopting some of their tactics, for the sake of profiting off of their own activities they would conduct anyway. The other interviewee foresaw existing organised crime groups entering into the market themselves for the sake of profit.

Finally, many stakeholders replying to the public consultation observed that, since 2011, significant technological development took place, and rendered more difficult the fight against CSAE. Specifically, risks are determined, on the one side by the increasing number of children spending more and more time on the internet (e.g. on social media platforms), often without adult supervision; on the other, by the increasing use of technology by offenders, who can benefit from hidden identities, encrypted communication, peer-to-peer networks on the darkweb to perpetrate CSAE-related offences (e.g. grooming and distant coercion and control of victims). Meanwhile, the online environment enables new forms of offences (e.g. live streaming, revenge porn, deep fakes, AI-child sex robots, sexual assault and sexual harassment taking place in the Metaverse), which are not fully addressed by the CSAE Directive. Against this background, the online space results underregulated in this respect, lacking an adequate and efficient infrastructure to prevent children from falling victim to CSAE.

2.2.2    The different legal frameworks in place in the Member States concerning investigation and prosecution do not allow for an effective fight against child sexual abuse and exploitation

Certain behaviours are not considered a criminal offence in all Member States, and due to the nature of different interpretations on how to transpose the Directive and the fact that the terminology present in the Directive was interpreted differently (such as ‘child pornography’), and that some definitions were not provided (such as the age of sexual consent), variations in criminal law and procedure have given rise to differences in investigation and prosecution in different countries.

‘Paedophile handbooks’

‘Paedophile handbooks refer to documents created by offenders for offenders with information on how to find, approach and groom children to sexually abuse them. Some countries such as Germany have banned them, whereas others like the Netherlands are considering legislation banning them. Taking into account the principle of strict interpretation of criminal law, and as outlined in the Explanatory Report to the Council of Europe Convention regarding the advantages of harmonising criminal offences, this situation may favour certain acts in Member States where the law is more lenient, make the collection of comparable data and experience more difficult, and obstruct international cooperation (in particular extradition and mutual legal assistance) 97 .

Box 10: Pedophile handbooks

Statute of limitations

Another important difference concerns statutes of limitations. Different time limitations have been established in the Member States as regards the definition of the period during which victims can report abuses after they reached the age of majority. The CSA Directive does not set any time-limit indication, leaving the Member State with discretion as regards statutes of limitation for CSAE-related offences. Such a margin of discretion has created some barriers to the prosecution of CSAE offences.

Box 11: Differences in statutes of limitations

Travelling child sex offenders

Western European countries, traditionally known as the source of travelling child sex offenders, are now becoming the destination of child victims of sexual abuse. 103 However, children's vulnerability to sexual abuse is particularly increasing in Eastern and Central Europe, which have become countries of origin and destination 104 .

The different legal frameworks across Member States create difficulties to cooperate with regard to travelling child sex offenders. Difficulties have emerged with respect to the exchange of information on convictions, with a consequent limited effectiveness in preventing travelling sex offenders from moving and gaining access to children in different Member States 105 .

Severe challenges persist also when cooperating with third countries, including in relation to jurisdiction, lack of trust towards data protection regimes, lack of hotlines in third countries, and cumbersome legal procedures, such as Mutual Legal Assistance (MLA). The application of certain rules on criminal jurisdiction often results in child sex offenders committing offences abroad and enjoying impunity in practice.

Statistics

A comprehensive, factual dataset with comparable statistics related to investigations and prosecutions of child sexual abuse cases for all Member States is not available. Indeed, most of the Member States do not have in place a comprehensive national database including the number of identified CSAE victims 106 . The most complete dataset available is from the statistics of the United Nations Survey of Crime Trends and Operations of Criminal Justice Systems (UN-CTS) collected by the UNODC, 107 which, however, is limited in terms of (i) availability of responses of the individual Member States over the time period (2014-2019) and (ii) completeness of the questions answered. Some consulted stakeholders shared frustrations on the lack of a single EU database that brings together all the statistics related to all aspects of CSAE 108 .

Another issue relates to the lack of standardisation of data collection mechanisms in place, preventing data comparability both within and across the Member States 109 . The lack of publicly available information affects research in the area, e.g. on the effectiveness of primary, secondary and tertiary prevention programmes, which indeed is limited 110 .

Stakeholders' views (online survey, targeted interviews and public consultation) on problem driver 2 (Different legal frameworks and their effect on investigation and prosecution)

Regarding investigation and prosecution of CSAE offences, survey respondents confirmed that the CSAE Directive’s implementation has enhanced the use of appropriate investigative tools to fight against CSAE. Most respondents (77%, n=34 out of 44) agreed that the CSAE Directive’s implementation had a moderate or even large effect on ensuring that LEAs have access to the right tools to investigate cases of CSAE. Two respondents mentioned that the CSAE Directive’s implementation had helped introduce high-tech and specialised tools for investigating CSAE cases. Also, a large share of respondents agreed that the sanctions foreseen by the CSAE Directive are dissuasive (44%, n=22 out of 50), effective (48%, n=25 out of 52), and proportionate (51%, n=27 out of 53) to a large or very large extent. Nevertheless, the share of respondents that considered such sanctions as only moderately dissuasive is still considerable (34%, n=17 out of 50). Finally, the majority of respondents confirmed that there is high variance in terms of what materials constitute “child pornography” according to Member States’ legislations. Depending on specific national definitions included in different Member States’ legislations, “child pornography” can include AI robot (51%, n=24 out of 47), anime and manga depicting sexual images of children (63%, n=35 out of 56), child sex dolls (51%, n=27 out of 53), deep fake (67%, n=32 out of 48), literary novels romancing child sexual abuse (39%, n=20 out of 51) and texts explaining how to groom (46%, n=23 out of 50).

In addition, regarding CSAE investigation and prosecution, the participants to the targeted interviews agreed that the CSAE Directive provided for an effective legal framework for investigation and prosecution procedures at the national level. The most reported factor undermining the effectiveness of the CSAE Directives was the absence of a common definition of the “age of sexual consent”. Also, interviewees highlighted that the term “child pornography” should be replaced with a more suitable term: as the term “pornography” is primarily used for adults engaging in consensual sexual acts, hence using the terms “child pornography” might appear to imply a similar legitimacy to that of consensual pornography. A shortage of both financial and human resources available at the Member State level emerged as an additional barrier to investigation and prosecution of CSAE-related offences. Stakeholders agreed that the CSAE Directive has helped investigate and prosecute cross-border online CSAE-related offences, though they broadly agreed its contribution has been insufficient. One interviewee criticised the CSAE Directive’s focus on perpetrators and committed offences instead of regulating the online environment that enabled the crimes.

Respondents to the public consultation In terms of crime investigation and prosecution, the majority of stakeholders responded to the public consultation stated that the CSAE Directive contributed to successful criminal proceedings to a moderate or high extent (78%, n=28 out of 36), and that the penalties foreseen by the CSAE Directive have a proportionate and dissuasive effect to a moderate, high or very high extent (66%, n=23 out of 35). Also, the extension of the statute of limitation after the victim has reached the majority was mentioned as the key provision of the CSAE Directive that contributed the most to increasing reporting of CSAE cases (60%, n=24 out of 40 respondents answering very high or high extent). The possibility to continue investigation and prosecution of CSAE offences even if the victim’s statement was withdrawn was mentioned among the key measures that contributed to improving the investigation and prosecution of offenders (50%, n=9 out of 18 respondents answering very high or high extent).

The respondents identified as one of the major problems affecting the fight against CSAE in the EU the use of term ‘child pornography’ which has been found as being outdated and incoherent. The term narrows the category of material that should be considered abusive to children, for instance, it does not include self-produced sexual content, with respect to which, however, children need protection. Moreover, the word ‘pornographic’ risks distracting from the serious violation it actually consists of, because it can imply the idea of consent from the depicted children. They further stated that internet Service Providers (ISPs) need clear and mandatory rules on the detection, reporting blocking and removal of CSAM in their services, which should also be held accountable for failure to act. To render such procedures effective, cooperation between ISPs and LEAs authorities should be strengthened.

Finally, the respondents supported the creation of a European Centre dedicated to the fight against online CSAE, as outlined in the Proposal for a Regulation laying down rules to prevent and combat child sexual abuse. The Centre will facilitate CSAE prevention and enhance cooperation in delivering justice not only within the EU but also working with jurisdictions outside of the EU. Stakeholders raised that the operational activities and methods of the European Centre remain unclear and should be defined. To this end, the Centre would benefit from an EU-wide set of updated terminology and definitions.

Stakeholders' views (case study interviews 111 ) on problem driver 2 (Different legal frameworks and their effect on investigation and prosecution)

As a result of the conducted case study interviews, the consulted law enforcement and judicial authorities highlighted the following needs with regards to legislative policy measures about the adequate legal framework and its effect on investigation and prosecution:

·Replace the concept of “child pornography” with “child sexual abuse material (CSAM)” / Replace “child pornography” with child sexual exploitation material” (CSEM). At the same time, one JA, one NCA and one CSO argued that a recast CSAE Directive should include two separate definitions of CSAM and CSEM according to the specific content they refer to. In their view, inclusion of just one overarching definition could create misunderstanding in the transposition of the CSAE Directive at the national level.

·Pointed to the need to ensure prohibition of manuals that contain instructions for offenders on how to groom or sexually exploit children.

·Require the Member States to establish a common minimum threshold for the age of sexual consent. Along the same lines, two NCAs pointed out that a common definition of a minimum threshold for the age of sexual consent would at least minimise the risk that offenders exploit differences in national laws to perpetrate CSAE offences in countries where lenient penalties are in place.

·A couple of interviewees also stressed the need to remove any distinction between above/below the age of sexual consent. However, one NCA pointed out that introducing this measure might be challenging in terms of political feasibility because, due to differing cultural views and domestic debates, the age of sexual consent is given greater weight in some Member States than in others.

·Require the Member States to establish minimum rules for CSAE offences “perpetrated through tech-facilitated or tech-enabled means. However, one NCA highlighted that the CSAE Directive shall remain “tech-neutral” in terms of how CSAE offences are defined, and that the threats posed by the use of technological instruments shall be addressed through adequate prevention measures.

·Require the Member States to provide for an aggravating circumstance for CSAE offences “perpetrated through tech-facilitated and tech-enabled means”. However, a few argued that including an aggravating circumstance for CSAE offences perpetrated online could be relevant though not necessary, and that online offences should be on par with those that occur offline. Also, one LEA further remarked that any aggravating circumstances should not go so far in terms of higher penalties so to lead an offender to opt for engaging in offline CSAE. Finally, one LEA and one NCA specified that the national legislation in their Member State already provides aggravating penalties for crimes perpetrated through tech-facilitated means against children who are below the age of sexual consent.

·Require the Member States to ensure that any statute of limitations commences from the victims’ age of majority.

·Prohibit the statute of limitations for CSAE offences.

·Require the Member States to ensure adequate training of professionals in charge of investigating and prosecuting CSAE offences, while (one) LEA representative remarked the necessity to invest on the recruitment of new staff to deal with the need to assess the increasing volume of reported CSAM. Also, one CSO further specified that training courses shall involve also other stakeholders, such as hotline analysts, who could have a supportive role in the identification and assessment of CSAM.

·Mandate employers to request information on criminal convictions during the recruiting process for any activities involving direct and regular contact with children, including volunteers.

·Require, on a mandatory basis, professionals and persons working with children to report CSAE offences. One of the CSO pointed out that, sometimes, reporting mechanisms are burdensome, hence preventing professionals to report CSAE offences while one LEA suggested that parents shall be included in the group of mandated reporters, as sometimes they refrain from reporting due to shame or reluctance. Finally, four NCAs stated a mandatory requirement for professionals working with children to report CSAE offences would be too strong whereas capacity building initiatives would be needed to improve skills of professionals working with children to understand the signs of sexual abuse suffered by children.

2.2.3    Member States’ efforts to prevent child sexual abuse and to assist victims are limited, lack coordination and are of unclear effectiveness

Prevention efforts

·Limited. 

In relation to the two main types of prevention efforts described in section 2.1.:

·Prevention efforts to decrease the likelihood that a child becomes a victim. Awareness raising 113 and training is limited in availability, particularly to organisations and persons that come in regular and direct contact with children as part of their jobs or vocational activities, in addition to carers and parents. A vast majority of the abuse occurs in the circle of trust of the child. At the same time, those in regular and direct contact with children should have the knowledge and tools to ensure that children do not become victims, given their proximity to the child.

·Prevention efforts to decrease the likelihood that a person offends.

Research into what motivates individuals to become offenders is scarce and fragmented. This current lack of research makes it difficult to put in place effective programmes before a person offends for the first time, in the course of or after criminal proceedings, both inside and outside prison. As a result, there are currently very few programmes in place 114 .

·Uncoordinated. Multiple types of stakeholders need to take action to enact a preventive approach that delivers results. This includes public authorities, the research community, NGOs, and providers of online services used by children. The various types of practitioners in this field do not communicate sufficiently with each other and with researchers on the effectiveness of the programmes, lessons learned and best practices; language can be a further barrier. Expertise and resources to establish and implement such initiatives are not evenly distributed in the EU, and successful programmes are mostly local endeavours. There are overlapping efforts in some areas, e.g. Member States designing similar programmes and campaigns in parallel 115 , whereas other areas, such as reaching out to potential offenders, are not sufficiently addressed.

Unclear effectiveness. The few programmes that exist are rarely evaluated to assess their effectiveness and usability 116 . A recent systematic review of the published empirical literature on child sexual abuse perpetration prevention interventions found only five published evaluation studies, and these were methodologically limited (e.g. four examined the same intervention only on adults in Germany, and the other one focused only on children aged 5 to 12) 117 . The difficulty to assess the effectiveness of both prevention measures and assistance to victims efforts is compounded by the failure by Member States to systematically collection statistics on the trends in the area of child sexual abuse and exploitation. This is likely linked to the need felt by Member States to make allocation choices in relation to the resources available to fight such crime. In the absence of an obligation to collect statistics in the 2011 CSA Directive (which the Commission had proposed at the time but which was refused by Member States) only encourages Member States to set up mechanisms to collect trends and statistics, in recital (44)), Member States have neither established targeted mechanisms nor devoted sufficient resources to achieve this objective.

Assistance to victims’ efforts

·Limited. Victims of CSA do not always receive the tailored and comprehensive assistance required 118 , such as support in trying to stop the sharing and distribution online of the images and videos depicting their abuse, which perpetuates the harm.

·Uncoordinated. Victims of CSA require comprehensive support that brings together all relevant sectors, including health, legal, child protection, education and employment. Such coordination between relevant actors within and between Member States is lacking. The existing initiatives do not systematically make use of existing best practices and lessons learned in other Member States or globally. This translates into information gaps on help resources, gaps in specialised support, and overall inefficiency of efforts.

While the digitalisation of justice has led to positive results in some cases, access to justice was not improved for all victims of crime, in particular vulnerable victims. This finding was also echoed in the impact assessment for the recent Commission proposal on digitalisation of justice, which indicated that victims risk being deterred from exercising their rights or being unable to do so due to a lack of digital tools 119 or to limited accessibility of the IT resources in case victims are persons with disabilities.

·Unclear effectiveness. There is little data on whether CSA victims have access to appropriate support, and existing research suggests that the level of satisfaction with support received is low 120 .

Box 8: main sources of evidence on current efforts on prevention and assistance to victims

Stakeholders' views on problem driver 3 (Prevention of child sexual abuse and assistance to victims)

Regarding CSAE prevention, most respondents (60%, n=27) to the online survey considered that the CSAE Directive’s implementation has contributed to preventing repeated offences against children (e.g. stopping offenders from holding professional positions that bring them in regular and direct contact with children), at least to a moderate, large or very extent. Yet, 29% (n= 13 out of 45) of respondents still claimed that the CSAE Directive’s contribution had little if any contribution in this regard. Although several stakeholders (44%, n=17) considered that its contribution was moderate or large, the majority of respondents (50%, n=19 out of 38) deemed that the CSAE Directive’s implementation only contributed to a small extent, or it did not contribute at all, to preventing abuses of children with disabilities. Similarly, most respondents (59%, n=20 out of 34) considered that the CSAE Directive’s implementation had contributed to preventing abuses of children with specific gender needs (e.g. girls, boys, LGBTQI+) to a small extent, or it did not contribute at all. However, according to most respondents, the CSAE Directive has contributed to a moderate, large, and very large extent towards the prevention of child abuses in the context of migration (53%, n=17 out of 32), the uploading, access to, and dissemination of CSAM (71%, n=30 out of 42), and the dissemination of material advertising the organisation of travels to commit CSAE (66%, n=23 out of 35). Further, most of respondents (64%, n=25) considered that the implementation of the CSAE Directive has contributed to preventing first-time offences against children (e.g. through intervention programmes to persons who fear they might offend) to a moderate, large or very large extent. Also Also, some respondents (n=4) highlighted that initiatives or measures targeting potential offenders are still insufficient, and that they are often the result of independent actions taken by the single CSO, rather than a direct result of the CSAE Directive implementation.

Most of the survey respondents (77%, n=19 out of 53) considered that the CSAE Directive’s implementation has contributed to facilitating access by child victims to assistance and support measures available to them (e.g. legal remedies and appropriate specialist protection measures) at least to a moderate, or to a large or very large extent. Some survey respondents reported that support services are made available as long as necessary (n=8), or that the period is determined on a case-by-case basis (n=2). Moreover, most of the survey respondents (51%, n=27 out of 53) considered that the CSAE Directive’s implementation has contributed to ensuring that victims of CSAE do not suffer additional trauma and harm from participating in criminal investigations and proceedings from a large to a very large extent. However, some survey respondents (n=5) commented that many of the assistance and protection services available to CSAE victims were already in place before the implementation of the CSAE Directive. Survey respondents (84%, n=49 out of 58) also considered that efforts at the EU level against CSAE would benefit from additional EU training for JAs and LEAs working with victims of CSAE, from a large to a very large extent.

Most of the LEAs responding to the online survey confirmed they frequently cooperate with other LEAs (92%, n=12 out of 13) and JAs (84%, n=11 out of 13) in their Member State in relation to CSAE cases. According to respondents, main cooperation mechanisms facilitating coordination of national actors concerned with the fight against CSAE (e.g. including, among others, ad-hoc memorandum, regular exchange of information, ad-hoc cooperation agreement) are available in their country to facilitate coordination of national actors concerned with the fight against CSAE. As to cooperation with authorities in other countries in relation to CSAE, it mainly occurs with LEAs (39%, n=20 out of 51), competent authorities (34%, n=17 out of 52) and JAs (22%, n=11 out of 51).Some respondents (n=5) also pointed to the role played by the International Association of Internet Hotlines (INHOPE) Network in facilitating cross-border cooperation with third countries’ hotlines and LEAs.

With regard to the effectiveness of prevention measures, participants to the targeted interviews pointed to education initiatives and awareness-raising activities as the major areas where the CSAE Directive has shown a positive contribution. However, one interviewee claimed that national budget and effort are still too much focused on the repression side of the fight against CSAE, with limited investments in prevention measures. Another interviewee emphasised that, due to insufficient resources available at the Member State level, prevention measures are usually targeted at very specific audiences and lack a comprehensive approach to CSAE prevention. For instance, most secondary prevention initiatives are not targeted at the right audience (e.g. mid 65 years old men are not usually considered, while they represent a significant share of all offenders). Finally, some interviewees pointed to the insufficient offer of initiatives aimed at the prevention of online CSAE offences, which, according to the interviewees, is a consequence of the inadequate coverage of such offences within the CSAE Directive.

As a result of the four case study interviews with national stakeholders from Germany, Italy, the Netherlands and Romania, the following legislative policy measures related to prevention and assistance have been identified:

·Require Member States to ensure the protection of child victims with special needs during criminal proceedings.

·Require the Member States to establish a formal referral mechanism to ensure prompt referral of child victims to the most appropriate services.

·Require Member States to ensure adequate prevention of CSAE offences against children with special needs. More precisely, one CSO representative emphasised that effective prevention policies against CSAE should define special measures for children with disabilities as they face higher risk of becoming CSAE victims. Another CSO representative pointed out the need for sexual education of children with special needs, adding that, in his Member State, it will likely become mandatory for schools to deliver, upon parental consent, sexual education programmes for children with special needs.

·Require the Member States to ensure that hotlines have a clear legal mandate to act as a formal body entrusted to receive, view and assess reported CSAM. Two CSOs highlighted that a clear legal mandate for national hotlines would improve the effectiveness of their cooperation with LEAs. One CSO stressed that currently the national hotlines are subject to different rules across the Member States, including on the type of CSAM contents that hotlines can view, assess and report. This led to fragmentation and discrepancy of data collected by different national hotlines. Therefore, in their view, a legal mandate that clearly states the type of data that can be collected by different national hotlines across the Member States would allow comparability of data on reported CSAM collected by different national hotlines, while contributing towards improved hotlines’ cooperation. Finally, another CSO stressed that, at the minimum, hotlines should be legally allowed to proactive search for CSAM/CSEM content upon request from child victims.

·Require the Member States to establish a National Rapporteur or equivalent mechanism.  Any measures aimed at facilitating the collection of national data would be welcome as such measures would allow for a comprehensive and comparable overview of the CSAE phenomenon. Moreover, a couple of interviews underlined that the independence of the national rapporteurs would allow them to better perform their functions, including getting data from all relevant national actors as well as strengthening the credibility of reports developed the national rapporteur. One CSO strongly supported this measure as it would favour the establishment of a centralised database including granular statistics and data that are currently stored by different institutions. However, one NCA stressed that the mandate of national rapporteur should cover all forms of violence against children – and not being limited to sexual violence - as this allows comparability of data on the risk factors faced by children victims of any forms of violence.

·Establish an EU anti-CSAE Coordinator (ACC) Two CSOs stressed that the ACC would be suited to coordinate all Member States’ actions and projects concerning CSAE. However, one CSO warned against the risk that the role played by ACC may overlap with the role of similar authorities (i.e. European Centre to prevent and counter child sexual abuse) that are currently foreseen in the proposal for a regulation to combat and prevent online child sexual abuse. In order to avoid this risk, two NCAs suggested that the tasks of the EU ACC could be assigned to the EU Centre to prevent and counter child sexual abuse when it is established.

Stakeholders’ views (final workshop) on assistance, support and protection of CSAE victims

Positive impacts are expected in particular from:

·Adequate medical/psychological assistance to CSAE victims;

·Measures specifically tailored to children with specific needs during criminal proceedings;

·Access to existing schemes of compensation for CSAE victims;

·Establishment of a formal referral mechanism aimed at prompt identification of CSAE victims, as well as providing them with adequate assistance services.

Examples of good practices included: the Barnahus model, online reporting mechanisms (e.g. chatbot), victims’ funds for compensation, and compensation to victims not dependent on the conviction of offenders;

Concerns were raised regarding support after the age of majority, funding availability for compensation schemes and support for children in migration.

Stakeholders’ views (final workshop) on prevention of CSAE offences

Positive impacts are expected in particular from:

·Programmes specifically tailored to children with specific needs, ensuring flexibility in the wording and the listing of children with special needs;

·Mandatory measures to block access to web pages containing or disseminating CSAM/CSEM accompanied by removal and take-down processes of CSAM/CSEM (which are currently included in the proposal for a Regulation on combating and preventing online CSAE);

·Clear legal mandates for national hotlines, with appropriate funding for IT infrastructures needed to detect CSAM/CSEM;

·Establishment of National Rapporteurs or equivalent mechanisms, however, ensuring that national existing coordination mechanisms are appropriately taken into account.

Most participants, when asked about the expected effectiveness of the establishment of an EU anti-CSAE Coordinator (ACC), replied that they did not know and that they were not able to answer. However, some of them warned against risks of duplication of tasks and responsibilities at the EU level with other existing EU bodies.

Two Member States (NCA of EE and PT) flagged that it is paramount that any measures do not conflict with other proposed EC tools (i.e. the Proposal for a Directive on Combating Violence Against Women and Domestic Violence).

Finally, the large majority (68%, n=26 out of 38) of the stakeholders responded to the public consultation acknowledged (and deemed as very high, high or moderate) the contribution of the CSAE Directive regarding the support and assistance provided to victims. Also, according to 71% (n=23 out of 32) of respondents, the CSAE Directive contributed to ensuring that victims are not punished for their involvement in criminal activities that they may have been compelled to take part in, or were involved in unknowingly, from a moderate to a very large extent. Moreover, 76% of respondents (n=19 out of 25) agreed that the CSAE Directive contributed to ensuring protection of victim's privacy, identity and image during criminal proceedings to a moderate, high or very high extent.

With regards to the issue of child-friendly and sensitive justice, respondents supported a revision of the CSAE Directive towards ensuring child-friendly justice systems. This means that children should receive information about their rights and their involvement in the proceedings in a format and language that they can understand and that is tailored to their specific needs and age. To this end, authorities should, inter alia, adopt approaches that take into account the experienced trauma and gender-specific needs of the victims.

Considering the prevention of CSAE, many respondents provided positive feedback (very high and high extent) regarding the contribution of the CSAE Directive towards the removal/blocking of webpages containing or disseminating CSAM (44%, n=20 out of 45). Positive feedback was also provided regarding the contribution of the CSAE Directive towards the establishment of prevention programmes targeted at people who have not committed a crime but fear they may offend against children (41%, n=15 out of 37).

Many stakeholders state the need for awareness-raising activities to avoid children becoming victims of CSAE (e.g. through social campaigns and workshops) targeting the public and professionals working with minors, as well as for education programs in schools across the EU, including on themes such as sexual consent, gender equality, and online safety. Prevention initiatives targeting children should be age-appropriate and take into account gender-specific needs. Likewise, special attention to specific needs should be paid when designing prevention programmes for foster children, children in institutional care or living in domestic environments posing risks of becoming victims. Further, stakeholders expressed the need for mandatory rehabilitation programmes.

2.3 How likely is the problem to persist if there is no EU level action?

The problem of CSA is likely to continue worsening in the absence of additional EU level action, driven by the issues identified in the problem drivers section.

In view of the ongoing digital transition of society, both children and offenders will keep spending even more time online. As such, we can expect online threats related to CSAE to continue to increase and evolve 123 .

As children will be increasingly exposed to predators online, prevention will play a particularly important role. Parents and children will need the knowledge and tools to protect themselves. Without a solid and structured approach to awareness raising and education to benefit children, parents and caregivers, children will continue to fall victim to sexual abuse in greater numbers. This concerns both online abuse, which may be followed by crimes committed offline, but it applies also to purely offline abuse. While awareness of the problem is currently on the rise in a number of Member States when it comes to abuse in organised sports or other activities targeting children, an effective and systematic prevention response is still lacking. Whether sexual abuse takes place offline or online, children will therefore often continue to lack information on where to seek help, and the adults around them will not be in a position to notice or remedy the problem.

On the opposite side of the problem, people who are attracted to children will continue using the online space and related technological tools to find victims and evade law enforcement. Those who may want to seek support to overcome this attraction will often not dare to come forward for fear of legal consequences and social stigma. Instead, they will likely continue to seek information online, and often become drawn in by other predators into committing crimes, rather than finding professional help. Therefore, initiatives addressing more apparent aspects of prevention, such as awareness raising initiatives, will not be enough to address the entire problem, and the CSA issue is likely to continue growing.

Increased online activity and consequent exposure of children to predators will unavoidably result in more victims. Victims will continue having difficulties to access long-term assistance. Without more developed support systems in all EU Member States, the situation of victims will continue to vary. However, even in Member States with more advanced support systems, many victims will be left to face the psychological, physical and economic consequences of CSA without proper assistance, once the immediate proceedings around the crime are closed. In cases where the crime is never reported, victims and their families may not know where to seek help, or that they should be entitled to it.

Divergences in the criminalisation of offences across the Member States will persist, and consulted experts stressed that there are differences in the classification of the offences across Member States (i.e. some are considered misdemeanours and not felonies, especially in cases of possession of child sexual abuse material), which may result in lower prioritisation of action and restrict the availability of tools for LEAs  124 .

3. Why should the EU act?

3.1 Legal Basis

The appropriate legal bases are the same ones as for the original CSA Directive: Articles 82(2) and 83(1) TFEU.

Article 82(2) enables judicial cooperation in criminal matters, enabling Parliament and Council to establish minimum rules on, among other aspects, the rights of victims of crimes. Article 83(1) allows for the adoption of ‘minimum rules concerning the definition of criminal offences and sanctions’, including in the area of child sexual exploitation. All proposed options envisaged in the present Impact Assessment are based upon these two articles. The options address gaps in criminalisation and facilitate the mutual recognition of judgments and judicial decisions across Member States by further aligning minimum standards in relation to the definitions of crime and offenses, improving the system of transmission of information on previous offences between Member States and further clarifying the minimum rights to be granted to child victims.

3.2 Subsidiarity: necessity of EU action

The EU should take action in protecting children against child sexual abuse and exploitation only if and in so far as the objective cannot be sufficiently achieved by the Member States and can be better achieved by the Union.

As already highlighted by Council Framework Decision 2004/68/JHA and Council Decision 2000/375/JHA 125 , a satisfactory improvement as regards the rules applicable to countering child sexual abuse and exploitation cannot be sufficiently achieved by Member States acting alone or in an uncoordinated way. In the absence of EU action, Member States would have to keep adopting individual national laws to respond to current and emerging challenges, with the likely consequence of fragmentation and diverging laws likely to negatively affect the effective fight against child sexual abuse. The inherent cross border nature of child sexual abuse offenses is not a novelty: phenomena such as travelling child sex offenders, who cross borders to regain contact with children, as well as the spreading of online child sexual abuse material, have been known for decades.

In conclusion, Member States acting individually cannot effectively (i) prevent the commission of child sexual abuse offenses in their territory, (ii) investigate and prosecute child sexual abuse crimes with a cross-border dimensions, and (iii) identify and adequately provide assistance to victims.

Stakeholders' views on the necessity of EU action

The majority of respondents who took part in the online survey conducted as part of the Study confirmed the necessity of additional EU intervention to fight against CSAE. Specifically, the three main areas where EU intervention is deemed necessary (to a large and very large extent) are the establishment of: (i) additional EU funding for the fight against of child sexual abuse and exploitation in the EU (95%, n=56 out of 59), (ii) common minimum standards for ICT companies to report cases of online child sexual abuse and exploitation (93%, n=51 out of 55), (iii) additional EU trainings for judicial and LEAs working with victims of child sexual abuse and exploitation (85%, n=49 out of 58). Furthermore, additional EU action is believed necessary to ensuring a common definition of CSAM (n=5) and common rules to fight against CSAM related offences (n=11), higher level of harmonisation of procedures and penalties during cross-border investigations (n=12) as well as common standards for the use of adequate tools to detect CSAE, including its online format (n=4).

Furthermore, following 35 individual interviews (both during the evaluation and the impact assessment phase) with a broad range of the stakeholders (incl. EU bodies/agencies, international bodies, EU and international level CSOs, academia, national authorities and industry) opportunities for both legislative and non-legislative EU action were raised. As concerns legislative action, interviewees raised the possibility for the EU to adopt new EU rules on online dimensions of CSAE to strengthen internet safety for children. Four interviews raised the point that the terminology of the CSAE Directive should be revised to ensure that definitions therein are up-do-date. For instance, the term ‘child pornography’ should be replaced with ‘child sexual abuse material’. Also, one interview highlighted the need to include in the CSAE Directive specific provisions on data collection requirements for the Member States.

The large majority of respondents (94%, n=45 out of 48) to the public consultation agreed that the fight against CSAE continues to require action at the EU level, and it fully respects the subsidiarity principle.

3.3Subsidiarity: added value of EU action

Facilitate investigation and prosecution

CSA, in particular online offences, frequently involve situations where the victim and the abuser are in different jurisdictions, within the EU and beyond. As a result, it can be very challenging for the authorities of a single country to have access to all the information needed to effectively investigate and prosecute offenders, as well as to swiftly identify and recue victims from ongoing abuse. EU-level intervention enables cooperation between Member States notably by setting minimum standards and ensuring that the same behaviours are criminalised across Member States.

Facilitate and support Member States’ action on prevention and assistance to victims

While Member States are best placed to assess the gaps and needs, and implement action in their local context, they often lack information on what prevention and assistance to victims programmes are available, how effective they are, and how to approach their implementation in practice – who needs to be involved, what are the technical and legal pre-requisites and estimated costs. EU level action can provide a forum for exchange of necessary information and expertise to avoid duplication of efforts and blind spots. EU action can also help identify best practices and lessons learned at national level (from Member States or third countries) and incorporate them into EU-level initiatives, so that other Member States can benefit from them. These best practices can then be incorporated as needed into EU law to further facilitate their application across the EU.

Stakeholders' views on the added value of EU action

Considering the effectiveness of the EU action in the field of CSAE, the large majority of respondents (88%, n=44 out of 50) to the public consultation 126 agrees that an EU-wide cooperation framework is necessary to effectively combat this crime. At the same time, following 35 individual interviews (both during the evaluation and the impact assessment phase) with a broad range of the stakeholders (incl. EU bodies/agencies, international bodies, EU and international level CSOs, academia, national authorities and industry), the following outcomes have been obtained with regards to EU added value. Interviewees agreed that the CSAE Directive provided for a legal framework that stimulated the adoption of rules against CSAE across the Member States. One interviewee pointed out that the minimum common rules provided by the CSAE Directive represent the necessary precondition towards an effective detection, investigation and prosecution of CSAE offences, which have often cyber and cross-border elements. Several interviewees highlighted that the CSAE Directive facilitated cross-border cooperation for the taking down of CSAM, which might not have happened otherwise.

4. Objectives: What is to be achieved?

4.1 General objective

The general objective is to improve the identification, protection and support of victims of child sexual abuse, ensure effective prevention, and facilitate investigations and prosecution.

4.2 Specific objectives

There are 3 specific objectives that address the problem drivers identified in section 2.2.:

1.Ensure the criminalisation of all forms of online child sexual abuse and exploitation. This objective is of particular relevance to problem driver 1, as the increased online presence of children, as well as the latest technological developments, raise challenges for law enforcement while creating new opportunities for abuse. It is important to ensure that national rules on investigation and prosecution are efficient in fighting child sexual abuse and exploitation.

2.Ensure that national rules on investigation and prosecution allow for effective action against child sexual abuse and exploitation. The effectiveness should be evaluated by setting up mechanisms to monitor the effectiveness of national rules through a series of key indicators and statistics. This objective is of particular relevance to problem driver 2, as the different legal frameworks in place in the Member States concerning investigation and prosecution do not always allow for effective action against child sexual abuse and exploitation.

3.Improve prevention as well as protection, support and assistance to victims, require Member States to systematically collect statistics on child sexual abuse, and ensure an increased coordination among different Member States and, at the national level, among all the actors involved. This objective is of relevance to problem driver 3, as Member States’ efforts on prevention of CSA and assistance to victims are limited, lack coordination and are of unclear effectiveness. This objective therefore reflects the need to create a framework, with comprehensive and effective prevention programmes as well as appropriate assessments of the harm suffered by victims, and to ensure proper care as needed, taking into account the specific needs of the victim.

Contribution to relevant SDGs

The three specific objectives directly contribute to achieving the most relevant SDGs for this initiative, 5.2, eliminate all forms of violence against women and girls, and 16.2, end abuse, exploitation, trafficking and all forms of violence against children.

Specific objectives 1 and 3 also directly contribute to achieving other SDGs of relevance, such as SDG 1 on poverty and SDG 3 on health, by reducing the proliferation and effects of CSA and ensuring support to victims where it is currently missing.

Specific objective 3 helps achieve SDG 4 on education (e.g. through the awareness raising campaigns or the exchange of related best practices on offender prevention including on offenders who are children).

5What are the available policy options?

5.1 What is the baseline from which options are assessed?

In the baseline scenario no further EU policy action is taken. The following section assesses how, in the absence of the initiative, the existing and already planned policy instruments would address the problems and objectives identified in SDG 4. It is important to note that the baseline scenario might differ depending on whether the proposed CSA regulation is adopted and enacted as proposed by the Commission or not.

The objectives of the Recast are aligned with, and complementary to, those of the proposed CSA online regulation. Both instruments aim to effectively prevent and combat child sexual abuse in the EU, in line with the 2020 Strategy. They do so by acting, respectively, on two complementary dimensions of child sexual abuse.

The proposed regulation governs the conduct of private actors, whose services are increasingly used by perpetrators on the digital single market. It aims at ensuring that providers of online services take responsibility for keeping children safe on their platforms, by assessing the risk of misuse of their services for the purpose of child sexual abuse, taking mitigating measures, reporting, removing, and blocking online CSA, as well as by detecting it proactively, where needed and if ordered to do so by a judge or independent administrative authority.

The proposed Recast of the CSA Directive aims at setting the appropriate legislative framework for the action of national authorities in the field of criminal law. The CSA Directive sets the standards of what is illegal, which then in turn apply also in the context of actions and obligations of private actors as outlined in the CSA online Regulation. In addition, Member States are responsible for the adoption of prevention programmes covering all aspects of the problem both offline and online, for effective investigation and prosecution of child sexual abuse cases, for the criminalisation of related conducts, as well as for the adoption of assistance and support measures for victims.

The need for close cooperation between economic actors and national authorities, as well as the close link between online and offline child sexual abuse (most CSA cases today contain an online component) 127  make the two legislative interventions equally necessary and complementary. It is clear that, for example, for public authorities to be able to act and assist the victim, the crime has to be detected and reported. Reporting from online service providers is crucial in this respect (already today, in some Member States, up to 80% of investigations are only launched due to reports from service providers) 128 and it may prevent future crimes from happening (e.g. if the offender is arrested and granted access to a prevention programme).

Finally, the creation of an EU Agency (the EU Centre) that will act as a knowledge hub on child sexual abuse under the proposal, support the work of the prevention network and ensure coordination among member states, as envisaged in the proposed CSA regulation, can only make the implementation of the Recast Directive more effective.

Because of the close link and complementarity between the proposed CSA Regulation and the proposed Recast Directive, the uncertainty concerning the outcome of the negotiations of the CSA proposal affects the baseline from with the options presented in this initiative are assessed: such a baseline will vary depending on whether the proposed CSA regulation will be adopted as proposed by the Commission.

Regardless of the outcome of the negotiations concerning the CSA proposal, the criminalisation of CSAE offences perpetrated using new and emerging technologies will continue to be insufficient if no action is taken. Emerging trends, such as livestreaming of child sexual abuse and abuse in virtual reality settings, will not be covered by EU criminal law and Member States can be expected to continue to take a divergent approach on their criminalisation, as well as on the definition of CSAM and its circulation in the dark web.

Moreover, there will continue to be variance in national definitions of the age of sexual consent, in statutes of limitation for CSAE-related offences, as well as with respect to the investigative tools allowed in the fight against CSAM and the rules on disqualification arising from convictions. Finally, Member States are expected to continue to face issues in using ECRIS to share requests for information during background checks. These issues will result in persisting legal uncertainties and coordination challenges during cross-border cases due to different prosecution systems in place across the Member States.

National authorities will likely continue to suffer from divergent resources and limited expertise, which in turn prevent them from adequately detecting CSAE. If the proposed CSA regulation is adopted as proposed, the problem of underreporting in the area of CSAE will be partially addressed as a result of the obligations imposed on online service providers. However, high rates of underreporting by victims are expected to persist if no action is taken to ensure that statutes of limitations do not start running before the victim becomes of age and that reporting channels are not only available and child friendly, but also suitable for victims with special needs (e.g. children with disabilities).

These considerations about the shortcomings of the current framework are supported by the feedback provided by stakeholders during the various consultations. More than 80% of respondents to a public consultation questionnaire agreed that a potential revision of the CSAE Directive should aim to address specific new and emerging challenges that are not and should be covered at the EU level, such as the monetisation of CSAM and novel ways to carry out child sex tourism including live-streaming of abuse, the threats posed by ongoing technological developments including deep fakes and AI-child sex robots, and the metaverse, as well as the increasing online dimension of CSAE.

Moreover, 86% of stakeholders support the creation of a national authority in charge of coordinating the effort against CSAE at the national level. 73% called for harmonisation of the age of sexual consent, and more than 90% asked for harmonisation of the investigative tools and techniques allowed to combat CSAE. 129

1.Legislation

Existing and upcoming EU legislation is not likely to effectively address challenges. The 2011 Directive is not able to capture the new specificities of the online environment, and the proliferation of CSA is expected to continue in line with future technological developments. In addition, the implementation of the Directive has shown that coordination among Member States is still suboptimal and that not all Member States make use of all effective investigation techniques allowed by the legislation. The Proposed Regulation to Prevent and Counter Child Sexual Abuse would address several issues concerning the proliferation of online child sexual abuse, yet, as its definitions of online child sexual abuse rely entirely on the 2011 Directive, the protection of children will not be fully ensured without potential changes to such a Directive. In other words, the definition of child sexual abuse material and solicitation enshrined in the Directive constitutes the foundation of all the obligations imposed on online service providers (i.e. the obligation to assess and mitigate the risk of online child sexual abuse on their services, to report it and, if ordered to do so, to detect it, as well as to remove child sexual abuse material or block access to it). If the Directive is not updated to ensure that current trends in the field of child sexual abuse are covered, providers will not be obliged to protect children from these new manifestations of online child sexual abuse under the proposed regulation.

In addition, if there is no change to the 2011 Directive, incoherence will emerge with upcoming legal texts in related areas, for example the Directive on violence against women, which adopts specific provisions on offenses and level of penalties for certain types of violence against women and girls and provides that the statutes of limitations for certain offences committed against girls commence at the earliest once the victim has reached the age of majority.

Finally, the challenges that emerged in relation to the implementation of the 2011 Directive have shown that coordination between public authorities among and within Member States, as well as prevention and protection, support and assistance to victims measures, are likely to remain suboptimal in the absence of a legislative intervention further detailing the current minimum standards and enhancing the obligations imposed on Member States to the extent possible under the Treaties. If the CSA regulation is adopted as proposed, the exchange of information on the online trends and prevalence of this crime, as well as on the prosecution of cases launched thanks to reporting by online service providers, will be facilitated by the reporting requirements enshrined in Articles 83 and 84 of the proposal. However, the information collected in accordance with those Articles will cover only part of the picture, as it will be limited to the activities conducted under the proposed CSA regulation itself, and to criminal investigations and proceedings linked to reporting by online providers in accordance with such a proposal.

Analogously, if the CSA regulation is adopted as proposed, the establishment of the EU Centre and of national Coordinating Authorities will facilitate the exchange of information and the coordination among Member States in relation to any activity carried out under the proposed CSA regulation itself. However, the mandate of these authorities is limited by the scope and objectives of the proposed CSA regulation.

For reasons linked to its internal market legal basis, the proposed CSA regulation is addressed mostly to online service providers and does not contain obligations for Member States to adopt measures on protection, prevention or assistance and support to victims. Victims are only attributed the right to seek the support of the EU Centre in obtaining information on the online dissemination child sexual abuse material concerning them and in seeking its removal. Hence, the need to strengthen the prevention, protection, support and assistance to victims’ mechanisms enshrined in the Directive will persist independently of the adoption of the CSA regulation. Provisions on prevention programmes, as well as measures on assistance and support to victims to be adopted by Member States, are enshrined in the Directive – and will be strengthened in its recast. Hence, it will be for the national contact points established under such a recast to collect information and facilitate coordination and exchanges of best practices in these areas. If the proposed CSA regulation is adopted as proposed, Member States might chose to appoint the same authority as national contact point under the recast Directive and Coordinating Authorities under the CSA regulation.

More in detail, the added value (i.e. what they can achieve in preventing and combatting CSA) and the limitations of the existing and upcoming EU legal instruments are the following:

Proposed horizontal instruments

The main proposed horizontal instruments in this regard (such as the Victims Right Directive) address some of the problems and challenges but, given the specific challenges of CSA, can only provide limited and partial solutions.

The Victims’ Rights Directive and its Revision

·What it can achieve in the fight against CSA: as a horizontal instrument, the Victims’ Rights Directive covers the assistance, support and protection to all victims of crime. The upcoming revision of the Victims’ Rights Directive is expected to further improve victims’ access to information, to support and protection in accordance with victims’ needs, victims’ participation in criminal procedure and access to compensation from the offender.

·Limitations: Nonetheless, the current or planned legislation will not provide for specific measures that respond more directly to the specific needs of CSA victims.The Victims’ Rights Directive contains complementary solutions, in particular in relation to special support and protection of the most vulnerable victims, such as child victims of sexual abuse, it refers to the need to cooperate with other Member States to improve the access of victims to the rights set out in the Directive but it does not contain specific mechanisms to do so. This Directive does not address only CSA victims, for which dedicated mechanisms to facilitate the exchange of best practices, which take into account their specific needs, may be required.

Sector-specific legislation, proposed and existing

The sectoral instruments (the Proposed Regulation to Counter Child Sexual Abuse, the Human Trafficking Directive and its Revision, the Proposal for a Directive on combating violence against women and domestic violence, the Europol Regulation and its Revision) focus on particular aspects of the problem such as online child sexual abuse, which are not a full component of child sexual abuse to provide a comprehensive EU-level solution.

The Proposed Regulation to Counter Child Sexual Abuse

·What it can achieve in the fight against CSA: the Proposed Regulation focuses on online child sexual abuse, which is just one component of the various forms of child sexual abuse. It creates obligations for service providers to detect, report, block and remove child sexual abuse material, and establishes the creation of a new EU Centre which would facilitate the process and can also act as a hub of expertise regarding combating CSA, including with respect to prevention and assistance to victims.

·Limitations: the Proposed Regulation is not a criminal law instrument, and does not define the role of Member States and their public authorities in preventing and combating child sexual abuse, or strategies to prevent abuse and to assist victims.

The Human Trafficking Directive and Its Revision

·What it can achieve in the fight against CSA: The Human Trafficking Directive has protection measures such as providing for the appointment of a guardian or a representative as well as for safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services

·Limitations: Although the Human Trafficking Directive and its ongoing Review contains certain complementary elements to the CSAE Directive and other additional measures, it focuses merely on human trafficking and not the phenomenon of child sexual abuse in its entirety.

Proposal for a Directive on combating violence against women and domestic violence

·What it can achieve in the fight against CSA: The Proposal requires the Member States to provide that the statutes of limitations for offences committed against a child covered by its text commences at the earliest once the child victim has reached the age of majority. This is not only necessary to align with the VAW proposal, as explained above, but also crucial in light of the data emerging from research in this area. Children very rarely report their abuse shortly after its occurrence, because of a series of factors, including trauma, shame and the lack of trusted adults in the immediate environment. Recent data by the Australian Royal Commission 130 indicate that most victims of child sexual abuse only report the abuse more than 30 years after its occurrence. Hence, statutes of limitation that would expire shortly after the victim has reached the age of majority are not effective in ensuring that prosecution, investigation and victims’ support can be provided.

Hence, if adopted, the Proposal is expected to lead to clear improvements regarding both domestic and cross-border investigations against CSAE, notably due to strengthened and more harmonised rules concerning statute of limitations for those offences committed against a child covered by the Proposal.

As for assistance to, and support and protection of CSA victims, the Proposal for a Directive on combating violence against women and domestic violence provides for some measures not included in the CSAE Directive. These include guidelines for law enforcement and judicial authorities concerning how to treat children in a child sensitive-manner, a targeted support for victims with specific needs and groups at risk, and a strong role of national bodies to carry out assistance to victims.

The Proposal is complementary in this respect, since it provides for new measures and standards that enhance the rights of victims of gender-based violence, including gender-based victims of CSAE.

·Limitations: It does not encompass the full aspect of fighting against child sexual abuse and exploitation, and focuses on more generic elements related to violence, with a specific focus on adult women. The positive effects expected from the implementation of the Proposal will concern only a specific group of CSAE victim, namely those that are in the scope of the Proposal (i.e. victims of violence against women and domestic violence). This difference in scope also addresses the concerns flagged by two Member States about possible overlaps between the frameworks.

The Europol Regulation and its revision

·What it can achieve: Europol is able to receive personal data from private parties, inform such private parties of missing information, and ask Member States to request other private parties to share further additional information. These rules would also introduce the possibility for Europol to act as a technical channel for exchanges between Member States and private parties. Such a development would contribute to increasing the level of cooperation between the three aforementioned stakeholders, potentially improving the effectiveness of CSA investigations.

·Limitations: in and of itself, the revised mandate of Europol will not provide a comprehensive solution to address CSA online, which requires a multi-faceted approach. Enabling a more efficient exchange of personal data between Europol and private parties is a necessary but not a sufficient condition for achieving this objective.

2.Coordination

The sharing of best practices and expertise between Member States is minimal and unsystematic. The current level of ambition and of collaboration between the various public and private stakeholders results in ad-hoc and temporary solutions and is rarely effective in addressing CSA. As a result, Member States have been facing difficulties in fulfilling some of their obligations under the CSA Directive, which ultimately means that prevention measures are not sufficient to protect children and stop offenders from committing crimes, and victims do not receive appropriate support.

The points down below outline the current limitations that are being faced in terms of EU level cooperation on investigations, prevention, and multi-stakeholder cooperation.

EU level cooperation in investigations

·What it can achieve in the fight against CSA: the existing EU level cooperation in investigations has produced significant successes in the fight against CSA 131 and will likely continue to do so.  If the proposal is successful, the EU Centre will facilitate the process of detection, reporting and removing online child sexual abuse across Member States.

·Limitations: the ability of Europol and law enforcement agencies in the EU to cooperate in investigations is limited by the resources that they can allocate to this crime area. For example, Europol has only been able to examine 20% of the 50 million unique CSAM images and videos in its database 132 .

EU level cooperation in prevention

·Limitations: currently, the Commission services themselves are supporting the work of the prevention network by coordinating it and providing a secretariat. However, there are limits to the level of support that can be provided, in particular as the network expands. The activities of the network could therefore be constrained to a level that would not allow it to reach its full potential of support to Member States. As for the EU Centre, in addition to its main tasks of facilitating detection, reporting, blocking and removing CSA in accordance with the proposed Regulation, it is foreseen to have a supporting role in coordinating research work, exchanging information and bringing together stakeholders, including for prevention purposes. However, the proposed Regulation is still under discussion and the EU Centre will not be fully operational for several years.  

Multi-stakeholder cooperation at EU and global level

·Limitations: at EU level, the focus of the EU Internet Forum is to faciliate targeted exchanges between public authorities and online service providers. The Forum is not designed for discussions with a wider variety of stakeholders, including practitioners. Moreover, participation is voluntary and there are no legally binding obligations.

3.Funding

Action using EU funding is mostly project-based, and the uptake of EU funding is not optimal. For example, some Member States do not always make use of the funds available to them to tackle CSA (e.g. through the Internal Security Fund national programmes), possibly due to lack of knowledge on what funding is available and where it could be applied. Projects that take place, either national or cross-border, run the risk of replicating what has already been done due to lack of coordination

·What it can achieve in the fight against CSA: action using EU funding is likely to continue in the current project-based form, both as calls for proposals as well as research projects. EU-funded projects will continue to facilitate development of e.g. relevant IT tools for law enforcement and interventions aimed at preventing CSA and helping victims.

·Limitations: the current project-based efforts would be extended from grant to grant without long-term sustainability. Such long-term perspective may be supported by individual Member States with a national focus, but a comprehensive EU-wide approach and reinforced framework will continue to be lacking. The risk of projects duplicating existing efforts, will still be high; moreover, the update of successful projects will likely remain limited to participating countries. 

Baseline costs

In the baseline scenario, the inefficiencies in the prevention, investigation and assistance to victims of child sexual abuse are expected to have a negative economic impact on society. A higher number of victims will experience a diminished quality of life, likely resulting also in productivity loss, and will require significant support, putting a strain on public services.

The economic impact on public authorities will depend upon the level of action taken by service providers, which will dictate the number of CSAM and grooming reports received by those authorities. The existing legal fragmentation and lack coordination would remain and could act as a barrier to efficiently fight against CSA. In the absence of reforms addressing existing gaps in the legislation and technological developments, the issues would continue, driving up the economic costs for individual Member State entities.

As seen in boxes 4 and 14, the impact of CSA on its victims generates significant costs. Assuming similar costs and prevalence of CSA in the US as in the EU, adjusting for the larger population in the EU, the overall estimated annual CSA costs in the EU at present amount to EUR 13.8 billion 133 .

5.2 Description of the policy options

The 3 Policy Options described are of an incremental character. They range from Policy Option A, to Policy Option C. All the Policy Options considered aim to solve and tackle the 3 main problem drivers:

·The increased online presence of children, and the latest technological developments, raise challenges for law enforcement while creating new opportunities for abuse

·The different legal frameworks in place in the Member States concerning investigation and prosecution do not allow for an effective fight against child sexual abuse and exploitation

·Member States’ efforts to prevent child sexual abuse and to assist victims are limited, lack coordination and are of unclear effectiveness.

Both Options A and B aim to tackle most of the identified problems through gradual changes. Considering the specificities of child sexual abuse, which is considered to have a significant long-term impact on particularly vulnerable victims, Option C includes measures that are expected to have the necessary positive impact in terms of investigating and prosecuting offenders, matching the scale of the threat concerning the cross-border nature of child sexual abuse.

5.2.1 Option A: legislation 1) Targeted legislative adjustments clarifying ambiguities of current framework; 2) ensuring coherence with new instruments; 3) improving quantity and quality of available information.

The first policy option would be to issue certain targeted legislative adjustments which clarify the ambiguities of the current framework, ensuring coherence with new instruments such as the Proposed Regulation to Counter Child Sexual Abuse, and the Proposed Directive on Combating Violence against Women and Domestic Violence, and improving the quantity and quality of available information. In addition, Member States would have to compile and keep up to date a statistical database on child sexual abuse-related offences among the total number of police reports/investigations and court cases.

Legislative adjustments clarifying ambiguities

Member States would have to effectuate punctual amendments to their criminal codes or codes of criminal procedure, based on the following legislative adjustments which the Directive would incorporate:

On pornography depicting a child

·Rules on offences concerning CSAM apply also when CSAM depicts a person appearing to be a child whose age cannot be determined, thereby encompassing both a prevention and countering CSAM aspect, as persons who might actually be children can therefore be better protected against CSAM.

On exemptions from criminalisation

Persons who become aware of the abuse should be able to report it without having to fear sanctions for breaches of professional rules on confidentiality, as for the reasons mentioned before, the child itself may not be in a position to denounce the crime. Also, victims should not be criminalised in any situation. The following elements are proposed:

·providing for an exemption from criminalisation when CSAM is accessed or downloaded for the purpose of reporting it to law enforcement when this is established beyond any reasonable doubt;

·clarifying that Member States can elect not to criminalise the consensual acquisition, possession or production of CSAM by children over the age of consent only if the material is destined for the private use of those children and those children alone;

·clarifying that victims should not be criminalised for possession of materials depicting their abuse.

On compensation claims

·As also highlighted in the stakeholder consultation 134 , there is a need to better specify the content of the victims’ right to compensation in the context of child sexual abuse and ensuring that compensation takes due account of the damages related to the re-victimisation process arising from the circulation of online CSAM.

·It should also be ensured that victims of child sexual abuse offenses have access to national compensation schemes for the victims of crimes. These targeted amendments would go beyond the content of Article 16 of the Victims’ rights Directive, which for the moment only entitles the victim to ‘a decision on compensation by the offender’, without specifying what aspects should be taken account in the calculation of compensation and whether the victims should be compensated by the state when the offender cannot comply.

On transmission of information on convictions

·Clarify that the transmission of information on convictions between Member States is possible even when there is no consent of the person concerned, if the law of the transmitting states allow it. This would encompass both a prevention and countering CSAM aspect, as potential offenders might already be noticed, thereby preventing any future abuse.

On statute of limitations

·It is important that charges can be brought by the victim once he or she has recovered from the trauma of suffering the abuse, which can take years after it happens, particularly given the vulnerable situation of children.

·Clarifying that the time-limit for prosecution of CSA related offenses cannot start running before the victim reaches the age of 18.

Coherence with new instruments 

The Proposal for a Directive on combating violence against women and domestic violence proved to be complementary in this respect, since it provides for new measures and standards that enhance the rights of victims of gender-based violence, including gender-based victims of CSA. Nevertheless, there are amendments to be made to the CSA Directive in order to ensure a full coherence with new legislation when adopted.

On definitions

·Describing cyber violence as any act of violence covered by this Directive that is committed, assisted or aggravated in part or fully by the use of information and communication technologies.

·Defining information and communication technologies as all technological tools and resources used to digitally store, create, share or exchange information, including smart phones, computers, social networking and other media applications and services.

· Also, Article 45 of the Proposal for a Directive on combating violence against women and domestic violence introduces the notion of non-consensual act, 135  specifying that consent can be withdrawn at any moment during the act and that the absence of consent cannot be refuted exclusively by the child’s silence, verbal or physical non-resistance or past sexual conduct. This definition should be further specified in the CSA Directive, also considering that clarifications around the topic of consent would be welcomed by stakeholders, as outlined by stakeholders in the contractor’s study 136 .

On levels of penalties

·The Proposal for a Directive on combating violence against women and domestic violence broadens the scope of Article 3 of the CSA Directive. Precisely, Article 45 adds engaging with a child – or causing a child to engage with another person – in any act of vaginal, anal or oral penetration of a sexual nature, with any bodily part or object to the offences amounting to sexual abuse, establishing a maximum term of imprisonment of at least 12 years as a punishment for such offences to child below the age of sexual consent and 10 years for the ones above the age of sexual consent.

·Therefore, this level of penalty should be increased in the CSA Directive, also considering that the contractor’s study 137 reported that some experts suggested that penalty levels for some crimes, such as possession of child sexual abuse material might be too low to act as a deterrent for perpetrators.

On assistance to victims

The Directive should add that assistance should be accessible to victims with disabilities 138 , free of charge and available state-wide, all day long, every day of the week. The service can also be provided online and must ensure confidentiality of the users.

5.2.2 Option B: Option A + Legislative amendments modifying definitions of crimes to take into account current trends and expected technological developments.

The 2nd policy option would be for implementing the measures provided for in Option A, and in addition propose actual legislative amendments which modify the definitions of crimes, to take into account current and expected technological developments.

New trends and phenomena concerning serious forms of child sexual abuse and exploitation are currently not covered by EU legislation. This was also highlighted as a point to address by more than 80% of respondents to the public consultation. 139 Therefore, with Option B, Member States would have to effectuate punctual amendments to their criminal codes or codes of criminal procedure, based on the following legislative amendments which the Directive would incorporate:

Legislative amendments modifying definitions of crimes

This would encompass both a prevention and countering CSAM aspect, as offenders would have less scope to perform crimes if, exploring the following points, they would not have access to physical reproductions of CSA, to deep fakes, to paedophile handbooks. Criminalising new trends such as sexual chatting with children or live streaming of child sexual abuse as a stand-alone offence would cause concern for potential offenders, who might therefore be more reticent in engaging in similar activities. Enabling investigations in the darkweb would have a both preventive and investigation-supporting aspect, as potential offenders might be noticed more quickly and easily, thereby preventing any future abuse.

On virtual reality

Some Member States in their implementation have broadened the original scope of the Directive with regard to the definition of child pornography, to cover not only realistic images but also fictitious material such as drawings, deep fake images or novels. In other instances, national criminal law was proposed to criminalise the production and distribution of child sex dolls going beyond the categories of criminalised acts set out in the Directive. Therefore, it would be important for the Directive to focus on:

·Ensuring that the language and definitions on CSA related crimes are future proof with regards to potentially new technological developments;

·Adapting the definition of offenses to include those committed in virtual reality environment;

·Adapt to language evolution by criminalising deep fakes, sex dolls, paedophile handbooks;

·Criminalise production, possession and access to physical reproductions of CSA (child sex dolls, child AI robots).

On new trends

· Include adults over the age of sexual consent engaging in sexual chatting with children under the age of sexual consent;

·Criminalising sexual live streaming of children as a stand-alone offence.

On investigations in the dark web

·Enabling investigative units to perform takeovers of platforms in the dark web/distribute CSAM for the purpose of investigations.

5.2.3 Option C (legislative): Option B + Legislative amendments to ensure more effective prevention, investigation and prosecution, taking into account the cross-border dimension of the phenomenon.

The 3rd policy option would include adopting the measures provided for in Option B, and in addition issuing legislative amendments which will ensure more effective prevention, investigation and prosecution of child sexual abuse, taking into account the cross-border nature of the phenomenon.

A number of provisions would be introduced to assist with investigating offences and bringing charges. Especially on child pornography, sex offender networks are difficult to investigate by law enforcement authorities, as they often require sex offender newcomers to provide new child abuse images as a way of vetting them, something that traditional rules regulating enquiry activities by the police may forbid. EU harmonisation of investigative tools and techniques to combat CSAE was also supported by more than 90% of the respondents to the Commission’s public consultation. 140  

Legislative amendments

Member States would have to effect punctual amendments to their criminal codes or codes of criminal procedure, based on the following legislative amendments which the Directive would incorporate:

On prevention

Amendments would be introduced to help prevent child sexual abuse and exploitation offences, through a number of actions. Some would concentrate more specifically on offenders and people who fear that they might offend, as Member States’ action in this area has proven suboptimal under the current Directive, showing that the relevant provisions need strengthening. In particular, amendments should achieve the following:

·identifying clear benchmarks to assess the effectiveness of prevention programmes;

·ensuring the existence of dedicated prevention programmes for offenders both inside and outside of prison;

·ensuring the existence of dedicated prevention programmes for persons who fear that they might commit child sexual abuse related offenses

·ensuring that Member States can introduce cross-border disqualifications for sex offenders from certain types of jobs involving children. 

·encouraging the harmonisation of national law on transmission of information on previous offenses without consent of the offenders concerned

Another important initiative related to prevention would be encouraging the creation of a national Anti-Child Sexual Abuse Coordinator. The creation of this post would ensure a named individual who would coordinate national efforts and serve as a voice for prevention and for victims. This would allow for a significant improvement in cooperation among public authorities within each Member States and between different Member States, addressing the challenges identified in this respect as one of the major obstacle to effective prevention and fight against child sexual abuse under the current legal framework.

The proposed measure is consistent with the creation of a national focal point to advocate on behalf of victims and survivors, to raise awareness and remove the stigma that prevents victims from coming forward to report child abuse, and equally to address the societal stigma associated with treating offenders and reaching out to persons who fear they might offend. Taking account of the complex and interwoven coordination needs, this proposed measure is consistent with the need of a national focal point to promote an objective and systematic approach to the identification of knowledge gaps and gaps in service provision across multiple and diverse stakeholders, and how these gaps can be addressed by sharing best practice across Member States.

On investigation and prosecution

A large margin of discretion left by the CSA Directive regarding the operations of these systems leads to a series of self or co-regulatory measures that vary considerably in scope, methodology, and legal certainty. 141  The optional nature of Article 25 (2) has meant that its implementation by Member States has been inconsistent and varied. Challenges persist, particularly when cooperating with third countries to tackle online CSAE. The proposed initiatives include:

·enabling the use of undercover agents for investigative purposes;

·ensuring that existing tools, notably the European Criminal Records Information System (ECRIS) and the Schengen Information System (SIS), are fully leveraged and used more effectively in this area in the future, by engaging informally with Member States through the competent Commission services and assessing, in cooperation with the competent Commission Services, whether the issuance of guidelines or dissemination of best practices could be useful

There is a lack of coordination between the judicial system and health sectors, which hampers victims’ access to these services. In addition, psychological assistance for child victims is not always ensured. With regard to CSAE cases occurring within the victim’s family, evidence suggests that there is limited ad hoc legislation to deal with these cases. Evidence reviewed reveals that it remains unclear how the specific and individual needs are assessed across Member States. The suggested measures in this policy option would entail:

·Identifying clear benchmarks to assess the effectiveness of assistance to victim programmes;

·Having Member States collect statistics on child sexual abuse, and have them collect disaggregated data available for groups considered to be vulnerable;

·Introduce stricter requirements to address issues related to the lack of training of professionals, judges and educators dealing with child abuse cases.

5.4 Conclusion on Policy Options

Summary on Policy Options

All Options proposed were genuinely destined to tackle child sexual abuse and exploitation in all its forms, and the Policy Options were considered in an exponentially increasing manner, with each one adding in further measures which would combat this cross-border phenomenon.

The following table demonstrates how each Policy Option aims to solve each of the problem drivers, thereby proving that all Options proposed were genuinely destined to tackle child sexual abuse and exploitation in all its forms, and that the Policy Options were considered in an exponentially increasing manner, with each one adding in further measures which would combat this cross-border phenomenon.

5.5 Options discarded at an early stage

The process of building the retained options started with scoping the widest spectrum of measures and discarding a number of them along the way, which included notably:

·Repeal of the Directive in favour of a new Directive, i.e. completely redrafting the 2011 Directive. However, from the evaluation it has become clear that the main elements and structure of the Directive are still fit for purpose 142 . The issues identified as problematic did not justify a complete overhaul of the Directive, and could more easily be addressed through targeted amendments. A complete overhaul would not have been efficient from a point of view of implementation at Member State level either.

·Integration of new elements in a new piece of legislation: the option to integrate certain specific measures on countering child abuse into other existing and proposed legislations such as the Victims Right Directive or the proposed Directive on combating violence against women and domestic violence was considered, but then discarded as the data and research shows that the problem has to be addressed specifically and from a holistic perspective, due to its scale and specificities.

·Including a non legislative Option among the Policy Options for this Impact Assessment: As the majority of the issues identified in the problems and problem drivers are directly linked to vague definitions in the current Directive, legislative options are necessary to address the issues surrounding the Directive. If non-legislative measures were chosen, this would mean that there would be remaining divergences with other legal texts, including recent ones, such as the Directive on Violence against Women.

6What are the impacts of the policy options?

None of the policy options are expected to have an environmental impact, as already underlined in the Evaluation Roadmap/ Impact Assessment. Therefore, this criteria is not addressed in the analysis below.

6.1 Qualitative assessment

Summary table: costs and benefits

6.1.1Security impact

Option A would ensure a high level of harmonisation of the criminal law against child sexual abuse in Member States and thus, a higher level of security for citizens. Moreover, the legislative clarifications related to exemptions from criminalisation, specifications on compensation claims, and clarifications on statute of limitations would facilitate a more effective law enforcement and judicial response.

The legislative definitions related to the criminalisation of pornography depicting children, the criminalisation of offences committed in virtual reality, the criminalisation of physical reproductions of CSA, the criminalisation of sexual chatting with children under the age of consent, the creation of live-streaming as a stand-alone offence among the other novelties listed in Option B would adapt criminalisation to encompass behaviours that are on the same level of harm as those already criminalised but are currently not evenly treated across Member States.

Option C is considered to have the highest impact on security as it would combine the separate impacts on security of Options A and Option B with regards to harmonisation of criminal law, and also expand definitions related to crime as outlined in Option C. While strengthening the criminal law response to countering child sexual abuse is essential to reduce the crime, this needs to be accompanied by policy measures outlined in Option C related to cross-border cooperation, all of which aim at enhancing coordination among law enforcement and judicial authorities and between them and the private sector.

In addition, initiatives to create EU-wide expert networks on prevention and victim assistance and legislative initiatives specifically targeting electronic service providers demonstrate the cross-border, cross-sectoral and multi-agency nature of this crime area. These developments highlight the high degree of coordination required to support a comprehensive response to preventing and combating child sexual abuse, online and offline. A more wide-ranging coordination challenge, domestically and at EU level, has been ensuring alignment across related national arrangements associated with addressing online child protection needs. These initiatives include the 2022 Digital Services Act, the 2018 Audio-visual media Directive, and the 2022 Better Internet for Kids strategy.

Therefore, coordination must take account of potentially overlapping and duplicate responsibilities with national arrangements in the form of Digital Service Coordinators and Safer Internet Centres. The creation of Anti Child Sexual Abuse Coordinators, as highlighted in Option C, will strengthen coordination within national arrangements. 

This broader context also illustrates how the increasingly administrative nature of such regulatory measures go beyond traditional understandings of law enforcement, and where coordination requires a different degree of impartiality and objectivity, which is why the need for national coordinators is becoming a constant in many EU legislations. An obvious point of comparison is the setting up, under the 2011 Directive on preventing and combating trafficking in human beings and protecting its victims, of national rapporteurs or equivalent mechanisms to inform and assess policies, and the establishment of an EU Anti-Trafficking Coordinator to consolidate coordination and cooperation at EU level.

6.1.2Social impact

Measures which improve efficiency in fighting child sexual abuse are expected to have positive social impacts such as an increase in security, as well as a lesser need for parental or self-protecting measures, and contribute to trust in authorities.

Option A and B would have a positive social impact, as they would contribute to ensuring a higher level of safety of citizens against crime and reduce impunity of criminals, as provisions would be encoded in law. However, it would not be sufficient in itself to harmonise practices across Member States.

Option C would be expected to have the most significant impact on society, as it would also entail benefits both on the prevention and the assistance to victims’ side. In particular, the creation of clear benchmarks to assess the effectiveness of programmes can be expected to allow Member States to select the most impactful programmes for the benefit of children. On the prevention side, the Option would introduce stricter requirements to address issues related to professionals, judges and educators dealing with child abuse cases.

Member States would have to set up an independent national institution to promote and protect children’s rights: they would create an Anti-Child Sexual Abuse Coordinator. As has been shown also in the context of Anti-Trafficking Coordinators and is evident where national coordinators against child sexual abuse have already been appointed, this helps harmonise existing structures and processes, enhance prevention and victim support, and provide relevant stakeholders with more consistent data and information.

In addition, and underpinning the identification, evaluation and sharing of good practice, the Anti-Child Sexual Abuse Coordinator element is consistent with the development of comparable evidence bases across Member States in order to support policy making and evaluation nationally and at EU level. A national focal point is best positioned to not only bridging the practitioner-researcher gap to better inform the policy making and evaluation, but also to ensure that evidence-based policy recommendations are taken forward and acted upon.

This need is highlighted by the finding that most Member States are not collecting statistics on offenders for research purposes, for example where most of Member States have yet to establish a comprehensive national database that includes statistics on identified CSAE victims. The need of comparable data on CSA investigations and prosecutions is highlighted in view of the administrative statistics to be generated per Article 83 of the proposed CSA Regulation, and how such information will bring added depth to addressing knowledge gaps and understanding policy needs.

Impartiality is required to ensure communications across diverse stakeholders both in terms of the provision of information and the subsequent assessment for the evaluation of prevention and victim assistance programmes, which has been identified as rarely undertaken by Member States. The creation of benchmarks at EU level is essential to a process of evaluation to assist Member States to select impactful programmes. The development of such benchmarks is in turn necessary to avoid the risk of fragmentation where national legislatures may otherwise respond on case-by-case basis to current and emerging challenges such as those reflected in the problem drivers.

6.1.3Economic impact

As detailed in the impact assessment on Directive 2011/93, in the long term, negative economic consequences of child sexual abuse include inefficient State intervention due to lack of trust in public authorities, inefficient use of resources due to the need to adopt (more or less effective) self-protecting measures at the individual level, decreased productivity linked to trauma suffered by victims, and unfair distribution of wealth as criminals profit from their activities. While Directive 2011/93 and its implementation have contributed to improvements in this area, further efforts are required. In the case of child sexual exploitation and abuse, this is exacerbated by the economic cost of the psychological distress of victims and their increased health risks, and the cost of processing offenders.

It is difficult to put an exact price on child sexual abuse, and even more so on changes to be made to the criminal law framework governing child sexual abuse and exploitation. Therefore, the present assessment has to rely on a number of assumptions, generalisations, and extrapolations. Calculations made in 1998 estimated that the economic cost of child sexual abuse crimes range between EUR 100 000 and EUR 250 000 per offence. 143  20 years later, calculations range in the billions and have drastically increased up to EUR 13.8 billion, as detailed in the following section. As a contrast, measures which improve efficiency in fighting crime are expected to produce a general pattern of net positive economic impact. Even though in the short term there may be a moderate increase in administrative costs due to greater demands on the public system of criminal law, in the medium and long term, a more efficient system to fight and prevent crime deters more criminals and their rehabilitation leads to fewer offences.

None of the policy options analysed would have a negative impact on businesses and companies and citizens. Option C would probably have the highest impact, as the combination of legislative measures would further improve the capacity of law enforcement and judicial authorities to deprive any criminals from exploiting child sexual abuse for financial purposes, and to prevent child sexual exploitation from infiltrating the legal economy. Moreover, improving the fight against child sexual abuse would reduce costs, which are incurred by the crime for the society, in terms of coordination of investigations, prevention, specialised services, as well as law enforcement, health services and social protection.

6.1.4Fundamental rights

All policy options are expected to have a positive impact on fundamental rights, as they all contribute to preventing and fighting child sexual abuse, and to protecting the victims of the crime, which is prohibited by the EU Charter of Fundamental Rights. They also strengthen the protection of other fundamental rights enshrined in the EU Charter, including the right to human dignity (Article 1), the right to the integrity of the person (Article 3), the prohibition of inhuman or degrading treatment or punishment (Article 4), and the rights of the child (Article 24).

Options A and B would have a solid impact, due to the fact that they are legally binding and impose further obligations on the Member States in criminalising certain conducts, which are particularly harmful for the victims. In this respect, it could be argued that stricter measures, e.g. to increase the level of penalties for certain crimes such as possession of child sexual abuse material (Option A) or to criminalise as many forms of exploitation as possible (Option B), or to increase the efficiency of investigations (Option C) would be most beneficial when it comes to the safeguarding of fundamental rights. While an expansion of investigative possibilities has an impact on fundamental rights of persons suspected of crime, the option considered here would not constitute an introduction of an investigative possibility that was previously not available but would rather provide for clarity on its applicability also in child sexual abuse cases. Its use would take place in the strict framework already provided for under EU and national law, which ensures that more invasive investigative tools are deployed only where necessary and that the impact stays proportionate in light of the gravity of the offense at hand and other considerations.

Therefore, Option C is considered to be the best option as it would combine the positive impact of Option A and Option B, all while being accompanied by substantive measures on the prevention and assistance to victims’ side which will ensure a solid mixture of legislation and coordination throughout human rights protection.

6.1.5UN SDGs impact

Options A to C would in the long term all be expected to contribute to a reduction of the prevalence of CSA and consequently a reduction of violence against and exploitation of women and girls (SDG 5.2), and the sexual exploitation of children in general (SDG 16.2).

With stronger prevention and assistance to victim measures embedded in law, the Options would also address to some extent SDG 3 on health and well-being, and in particular would contribute to SDG 4 on education. The Options would also contribute to SDG 9 (industry, innovation and infrastructure), supporting Member States’ efforts in countering new developments to fight CSA in its various new technological forms.

Option C would have a positive impact on the same SDGs as Options B and C, but that impact is expected to be stronger as it would encompass more phenomena as well as coordination of investigations across Member States. The obligation to detect is expected to significantly reduce the phenomenon of sex tourism, which would lead to a more positive impact on all SGDs, in particular SDG 5.2, and SDG 16.2.

The new obligations related to investigations in Option C would have positive effects on preventing imminent crimes (and stopping ongoing ones) and would therefore lower the prevalence of CSA, positively impacting all SGDs. 

6.2 Quantitative assessment

The quantification of the costs and benefits of the policy measures/policy options is limited by the lack of data, in particular on the level of the type of abuse in question. Given these limitations, the estimates in this section provide an idea of the order of magnitude of costs and benefits and therefore should not be taken as exact forecasts.

6.2.1 Costs

All the policy options under consideration would result in costs for public authorities for Member States, rather than costs to EU citizens and business. It is important to note here that these costs would mostly be generated by an expansion of existing frameworks and efforts, rather than by the creation of new activities. Each policy option includes measures relating to prevention, assistance to victims, and investigation and prosecution of child sexual abuse. Under Options A to C, Member States would also have to proceed with amendments to their criminal codes and codes of criminal procedure in order to comply with legislative adjustments related to new definitions and penalties which will be present in the Directive.

The prosecution and investigation of CSA would entail administrative costs for Member States under all options. These relate to the expenses for Member States to exchange information on prosecuting offenders and new offences, setting up joint investigative teams and judicial coordination for investigation purposes, Options B and C would have investigative units able to perform takeovers of platforms in the dark web for the purpose of investigations, which will entail costs for Member States where this type of investigative tools are not yet used.

With this in mind, it is important to note that baseline costs of prosecution and investigation will vary depending on whether the proposed CSA regulation will have been adopted or not. If the proposed regulation were to be adopted, online platforms would face stronger obligations to protect children on their platforms, which should eventually result in a lower incidence of child solicitation or “grooming”. Likewise, platforms are expected by law to take steps to mitigate any significant risk of exchange of child sexual abuse materials (images or videos). Should they fail to mitigate a significant risk, national coordinating authorities can issue risk-based detection orders for specific content. These reports, which are currently submitted on a voluntary basis, are expected to improve in quality due to new reporting standards. Both changes should ideally lead to a reduction in overall workload of law enforcement. At the same time, the trend over the past decade has seen a continued increase in child sexual abuse and exploitation online, therefore, an overall decrease of administrative cost is not to be expected.

A large portion of the prevention-related initiatives will focus on having Member States exchange information and best practices, and on introducing a closer monitoring on prevention programmes by creating focal points for observation. As detailed in Option C, Member States would have to deal with the administrative and budgetary burden of establishing Anti-Child Sexual Abuse Coordinators. Even in this case, the financial burden of setting up these entities would vary significantly depending on whether the proposed CSA regulation will have already been enacted. As the function of national Anti-Child Sexual Abuse Coordinator might well be attributed to national Coordinating Authorities established under the CSA proposal (depending on the individual choice of each Member State), the pre-existence of such Coordinating Authorities under the proposed regulation would significantly reduce the costs needed to establish Anti-Child Sexual Abuse Coordinators under this initiative.

Finally, it should be noted that, under Options A to C, certain financial costs in the area of assistance to victims would be similarly borne by both the Commission and Member States, relating to compensation claims by victims and the psychological and medical support they would need.

The complexity of these elements of cost (and their partial dependence on a legislative instrument – the CSA proposal – which is not yet in force) makes it difficult to produce clear estimations. That said,

(I)the costs related to the administrative burden of setting up new authorities (the Anti-Child Sexual Abuse Coordinators) capable of collecting statistics on child sexual abuse at the national level can be calculated by proxy, looking at the average costs of permanent staff members in national administrations. As mentioned, these costs might be lower if the function of Anti-Child Sexual Abuse Coordinators is attributed to pre-existing authorities, e.g. (possibly) Coordinating Authorities under the proposed CSA.

(II)the costs of conducting investigations in relation to an increased number of offenses can be calculated based on the average cost of a child sexual abuse investigation and trial. The difficulty in this calculation resides in the difficulty to estimate the increase in the number of investigations and prosecutions that will arise as a direct consequent of this initiative. In particular, this increase is likely to be higher if the obligation to report online child sexual abuse for providers is enacted before the entry into force of the recast of the Directive and lower if it is not.

Box 14: Costs of Child Abuse

6.2.2 Benefits

The main quantitative benefits of the initiative derive from savings as a result of reduction of CSA associated costs. It is estimated that at a global level, productivity losses due to sexual, physical and psychological violence against children are equivalent to between 3% and 8% of world GDP. 151 The World Health Organisation analysed community surveys from Europe, which confirmed the extent of abuse: they show a prevalence rate of 9.6% for sexual abuse (13.4% in girls and 5.7% in boys). Applying these figures to the population of children in Europe suggests that 18 million children suffer from sexual abuse. 152 All this considering that many estimates are conservative, and that the consequences of child sexual abuse have different nature and consequences.

The United Nations states that the direct costs of violence against children are more immediate and easily measurable (health care system costs, social welfare costs, criminal justice costs), while the indirect future costs arising from the impact of the violence on the children are more difficult to determine and entail an overall productivity loss to society (psychological and behavioural problems, disruption from education and schooling, toxic stress with impacts on brain development, potential depression and death). 153

Indeed, financial compensation allocated to survivors “can include general damages for the pain, suffering and loss of amenity (that is, the impact the injury has had on the quality of life) and special damages for past and future financial losses, such as earnings and the costs of care and therapy”. In 2019, the High Court awarded over £1 million to a victim who had been sexually abused by his teacher at a school.  154  

Strengthening Prevention

The strengthening of prevention measures on the side of both victims and perpetrators would lead to savings relating to offenders (e.g. investigations, criminal proceedings and subsequent detention), savings relating to victims (short and long-term assistance), and savings relating to society at large (productivity losses linked to the trauma of child sexual abuse).

As a general rule, the logic of prevention programmes having a strong economic rationale is reflected in box 14 and by various research studies, including by analyses of correlations and confidence intervals by the Child Fund Alliance: “scaling up violence prevention programmes is not only desirable from a child welfare perspective, but also cost-effective.” 155  

Criminalisation of New Trends

The criminalisation of new trends in the field of child sexual abuse will lead to the rescuing and identifications of more victims, with the relevant societal benefits. A number of law enforcement agencies have highlighted the need for more comprehensive definitions of criminal actions in this space, including efforts that prepare the abuse such as paedphile handbooks, as well as more clarity on new trends, such as the livestreaming of CSA as well as CSAM generated by synthetic means using artificial intelligence-based tools 156 .  LEAs also having require access to the right investigative tools and capabilities to investigate specific new criminal trends (e.g. AI-generated CSAM, investigations in the darkweb) and legal certainty allowing exploitation of such tools 157 . This will reduce the time needed for each investigation and to lead to better results in terms of identification of victims and prosecution of perpetrators, reinforcing all the benefits indicated above.

Reducing the number of overall reports received, and improving the quality of those provided to LEAs by the Centre will also result in a reduction in the LEAs’ administrative burden. Over the long run, when the Centre is fully functional, the number of criminally relevant provider reports (actionable by law enforcement) is envisaged to reduce as a result of the Centre assuming responsibility to ‘filter out’ non-relevant reports, and ‘enrich’ relevant reports

Support and Assistance to Victims

The strengthening of support and assistance to victims would itself produce savings in the latter respect, reducing the long-term consequences of the abuse on the victim. The establishment of the EU Centre as a knowledge hub, supporting the associated EU Strategy initiatives of victim assistance and crime prevention expert networks, is envisaged to drive improvements in the efficiency and effectiveness of member state criminal justice interventions in this area.

These benefits will be amplified considerably if the CSA regulation is adopted as proposed by the Commission, as the increased number of reports of CSAE would lead to the identification of a significantly higher number of victims (that would then access support and assistance and suffer less trauma) and perpetrators (that would themselves be granted access to assistance with a view to ensure that they do not commit repeated offenses).

Statistical Collections

To estimate the overall benefits, the first step is therefore to determine the total CSA costs in the EU. However, it is difficult to deliver a precise number on the actual benefits of intervening on prevention, assistance to victims, and investigation and prosecution. The lack of prevalence data on violence against children causes difficulties in calculations of precise costs of child sexual abuse. Many countries lack precise systems to collect administrative data and surveys on violence against children, though methodologies by researchers have been refined over the years.

Many prevalence data across Member States does not distinguish between child sexual abuse within the family setting and that which is committed by perpetrators outside the family. 158 This is also why Policy Option 3 would ensure the creation of clear benchmarks and statistics on reporting as well as the Anti-Child Sexual Abuse Coordinators, to further ensure solid reporting on specific points

Country Studies

The Commission would overcome the statistical difficulties by using country studies as proxies for similar countries, considering middle-level incomes to be the norm.

The annual cost of CSA in the EU was estimated as being EUR 13.8 billion in the IA report accompanying the proposed CSA regulation, assuming similar costs and prevalence of CSA in the US as in the EU and adjusting for the larger population in the EU (and without taking the possible entry into force of the proposed CSA regulation into account). In addition, it is to be noted that all published studies on the costs of VAC acknowledge that figures are very likely to be underestimates of the true figure. 159

This estimation is in line with data coming from Spain 160 (conservatively assessing the cost of child sexual abuse in Spain as 979 million a year in 2015, which would account for around 1/10 of the cost in the EU based on the proportion between Spanish and EU population).

In addition, this estimation is extremely conservative if compared to a study conducted in Germany which estimates the costs of child sexual abuse and neglect in 2012 Germany alone to be at least 11 billion a year. 161  

In the study, the prevalence rate of at least one form of child abuse or neglect classified as ‘severe/extreme’ was estimated to be 14.5%. When estimated as a share of the German population aged between 15 and 64 years, the age range considered for the prevalence analysis, there would be 7.8 million people in Germany affected by child abuse or neglect. According to the methodology utilised, only 21% of the 7.8 million individuals affected by ‘severe/extreme’ child abuse or neglect was included in the cost calculation. This is equivalent to 1.6 million (or 3.0% of the population of a Member State aged 15-64 years). 162

A recent Italian study found that as for every known case there are at least nine submerged cases that will never be followed or treated 163 , if we project this data on adults today the figure of 9.5 abused children/adults assisted by Social Services of the Municipalities out of 1000 minors and that of nine cases submerged for each case known, the result is a total of nearly six million abused between adults and children (5.7 million), or slightly less than 10% of the national population. 164  The estimate was that the cost of child violence is about 13.056 billion Euros per year, equivalent to 0.84% of National GDP. Direct costs amount to 338.6 million Euros, while indirect costs amount to 12.7 billion Euros.

Separately, on the UK side the Independent Inquiry on Child Sexual Abuse stated that there were 3.1 million victims of child sexual abuse in England and Wales: (7.5% of the population between 18 and 75) according to the 2019 Crime Survey for England and Wales. 165  The estimated number of victims of child sexual abuse in 2020/21 according to the Centre of Expertise on Child Sexual Abuse. The administrative burden was high: 325 days of public hearings and 2.5 million pages of evidence processed.

The study conducted in the UK 166 , on estimating the financial and non-financial costs relating to all children who began or continued to experiece contact sexual abuse in England and Wales in the year ending 31 March 2019, provides more robust figures. The study sets out the total number of victims as 113,144 based on prevalence estimates that take into consideration a number of data sources. The total cost of £10.1 billion (EUR 11.8 billion) is broken down into 3 main cost brackets: anticipatory costs covering education, training and prevention, costs as a consequence of abuse looking at physical and emotional harm, healthcare, loss of output and victim services as well as costs in response to these crimes, that extend to police court, prison and safeguarding costs. The total lifetime cost per victim is £89,240. This is not an in-year cost, and it does not include victims of online and non-contact abuse, however it provides a clear and detailed overview of societal and economic costs per victim.

In particular it underpins the importance of effective prevention initiatives which are not only far cheaper in economic terms that the burden of costs coming from the consequences of and response to abuse, but also have a direct impact on reducing the prevalence of abuse.

According to the relevant IA report, the entry into force of the CSA regulation would reduce this cost by at least 25% (conservative estimation) and more likely 50%, mostly by virtue of the early identification of victims and perpetrators and consequent provision of timely assistance. Hence, the baseline victims cost would be 10,3 million (reduction of 25%) or 6,9 million (reduction of 50%) if the proposed CSA regulation was adopted before the proposed Recast. It is important to note that the precise impact of the Regulation cannot be estimated at this point as it is still being discussed by the co-legislators and significant changes have been proposed. As a result, these assumptions on the potential reduction of the costs cannot be considered as a sufficiently reliable basis and are not taken into account for the purposes of the present impact assessment.

Connection to the Proposed Regulation

As detailed in the Impact Assessment of the CSA regulation, thanks to the benefits of the CSA regulation, if adopted in the form proposed by the Commission, over the medium-term, there would be an increase in the number of reports received to the EU Centre from service providers. This will provide an interplay with the proposed Options A, B and C both on the prevention side, assistance to victims, and investigations and prosecutions. The stronger prosecution and investigation measures which are envisaged increasingly spanning from Options A and C would contribute to a decrease in child sexual abuse.

If adopted as proposed, the CSA Regulation would strengthen the efficiency of reports from service providers, as there would be an increase in actionable reports provided to law enforcement by the EU Centre. In turn, this would lead to the beginning and conclusion of more investigations and prosecutions on the Directive side, thereby contributing to a stronger accountability of child sexual abuse, as at the moment certain perpetrators manage to avoid prosecution.

Therefore, there would be a long-run assumption is an overall reduction in the prevalence of online child sexual abuse due to impact of the CSA proposal’s service provider obligations in terms of:

·better risk assessment and risk mitigation;

·improved proactive/preventive detection capabilities;

·better coordination at the national and EU level.

Each of these points would be a task for an evaluation of the CSA Regulation 5 years after its entry into force.

Finally, as proposed increasingly ranging from Options A to Options C there is a need of EU-specific research to: a) assess the economic burden of CSA across the EU; and b) ascertain the financial cost of CSA for criminal justice systems across the EU. On the CSA Regulation side, the EU Centre becoming a de facto knowledge and information hub for the region, would contribute significantly to these transparency and legislative evaluation needs.

Summary of Benefits

Box 15: Benefits of the Proposal

It is not possible to determine exactly what would be the benefits caused by each of these two categories or each policy measure. In addition, it is not possible to forecast with certitude what would be the exact benefits of each policy measure. For example, the reduction of CSA due to prevention would depend to large extent on the investments and efforts from Member States and the EU, which the policy options considered in this initiative could only help facilitate.

Therefore, overall all options are expected to reduce the cost of violence on an incremental basis, by inducing a reduction in the prevalence of child sexual abuse in the EU through prevention, protection, support, investigation, prosecution.

Table 2 – Summary of costs and benefits for the policy options

Stakeholders' views on the costs and burdens associated with the implementation of the Directive

Following an online survey 168 which took as part of the Study to inform the work on the possible revision of the CSA Directive, most respondents reported no remarkable increase in the costs entailed by the CSAE Directive, either with respect to investigation and prosecution of CSAE offences, or to CSAE prevention or to the provision of assistance and protection to CSAE victims. Similarly, respondents identified no change in the costs related to the training of professionals working with victims of CSAE in their country. Yet, respondents reported a significant increase in the provision of and participation in trainings following the implementation of the CSAE Directive in their country. According to the majority of survey respondents, the CSAE Directive has contributed to at least a 3% increase in the number of participants taking part in trainings, including member of the judiciary (56%, n=), police officers (58%, n=14 out of 24), and teachers (50%, n=6 out of 12). Conversely, most consulted stakeholders believed that the CSAE Directive limitedly contributed (less than 3%) to increasing the training offer for front-line police officers (55%, n=16 out of 29), professionals in charge of interviewing children during criminal proceedings (56%, n=15 out of 27), and the judiciary adjudicating cases of CSAE (63%, n=12 out of 19).

With regards to the replies received as part of the targeted interviews 169 conducted as part of the Study mentioned above, on whether the implementation of the Directive has entailed an increase in costs linked to child sexual abuse and exploitation, interviewees agreed that, overall, the costs incurred to reach the objectives of the CSAE Directive are balanced by the overall benefits in terms of higher criminalisation and prevention of CSAE offences. However, there are areas where the benefits can still be increased, hence increasing overall cost-effectiveness. For instance, hotlines are expensive to maintain (hardware, software, human time, and training) but are not widely used. Interviewees emphasised that prevention initiatives are highly cost-effective as prevention is always less costly than repression. Safety-by-design was raised as an efficient approach to fight against online CSAE. However, such a principle is not widely implemented due to claims of perceived constraints on technological innovation and violations of privacy.

6.3 Conclusion on Assessments

The main policy choices and trade-offs are between, on the one hand, the level of impact on countering child sexual abuse and the ability to prosecute such activities effectively, and the potential interference with fundamental rights and Member States’ administrative burdens on the other.

While Policy Option A would aim to tackle Problem Driver 1 by providing definitions of technologies, Policy Option B would instead further criminalize new developments and ensure future proof language on new technology. This would extend the range of EU intervention, and would create a higher administrative burden for Member States, with the positive effects being a stronger protection of children due to a stricter approach against this Problem Driver. Policy Option C would instead allow undercover agents to conduct investigations, with the tradeoff being potential privacy issues balanced with an even more efficient approach to counter child sexual abuse.

The Policy Options should not therefore be seen as ranging from low efficiency to high efficiency against Problem Driver 1, as Policy Option A is encompassed in Policy Option B and so forth. The main differences between these Policy Options is merely the fact that the more one ranges towards Option C, the more there is a higher risk of privacy issues, administrative burdens, and EU law’s role in Member States, outweighed by the benefits of protecting children and ensuring that new technologies do not outsmart EU law again.

In a similar spirit, Problem Driver 2 concerns different legal frameworks developing across time. While Policy Option A would aim to clarify ambiguities and ensure coherence with EU law thereby “setting the record straight” without engaging in high administrative burdens or privacy issues or intervention in Member State law, Policy Option B would actually provide new criminalization of certain activities, in order to ensure the legal landscape as a whole is more harmonized. The trade-offs being proportionally the same but growing exponentially, Policy Option C would harmonize the legal frameworks even more by allowing cross-border disqualifications for sex offenders, and increasing the use of platforms such as ECRIS and SIS. Therefore, the trade-offs and the reasoning behind them is the same, with merely an exponential growth of the protection vs trade-off paradigm.

More far reaching measures foreseen under Option C entail a higher risk of affecting interference with fundamental rights and Member States’ administrative burdens, considering that cross-border disqualifications for sex offenders have to be carefully managed in order to respect offenders’ rights, as should an increase in the use of platforms ECRIS and SIS, as should allowing undercover agents to perform investigations.

Problem Driver 3 concerns prevention and assistance to victim programmes, which are deemed to be national. Option C is of a more global nature when compared to Options A and B, which instead are both fully sufficient both with regards to prevention and assistance to victims. Due to the clarification of ambiguities and the criminalization of wider types of crimes, Options A and B have also however proven their worth on the prosecution and investigative side. Measures under Options A and B alone would stay short of the required major impact, in particular because they would not foresee investigation and prosecution measures which consider the cross-border dimension of child sexual abuse, which is instead an additional consideration that goes beyond the wider picture of child sexual abuse. The creation of national anti-child sexual abuse coordinators are entailed in the Option C measures that are regarded as being the most effective, yet that will also entail a higher degree of interference with Member States’ administrative and budgetary burdens.

In conclusion, in terms of fundamental rights, the policy choice must be guided by a balancing of interests, weighing the threats of not countering child sexual abuse effectively against potential interferences with for instance privacy concerns. The costs of implementation are weighed against the expected benefits: for those measures included in the preferred option and which are considered as particularly effective, our appraisal concluded that the costs will be outweighed by the expected benefits.

7How do the options compare?

Criteria have different weights, which indicate the relative importance of the criteria vis-à-vis each other: effectiveness = 4; efficiency = 4; necessity = 4; coherence = 3; subsidiarity and proportionality = 3. The higher the number, the more weight the criterion has. The assessment is made in comparison to the baseline scenario as a benchmark.

The following table compares the policy options and summarises their rating as compared to the weight of each criteria.

Table 3 – Comparison of policy options

7.1 Effectiveness

The effectiveness of each policy option is assessed against each of the specific objectives of this initiative.

7.1.1Ensuring effective prevention of child sexual abuse

Policy Option A and Policy Option B would be effective due to the legal obligations they would include related to an increase in penalties, which might deter certain offenders from offending, and due to stricter and more precise definitions on child sexual abuse which will encompass a wider range of the crime. In Policy Option C, the statistical requirements on CSA data collection and the creation of national coordinator would increase knowledge about all forms of child sexual abuse, both with EU citizens, professionals and children themselves.

Notably, in Policy Option C, there will be a further harmonisation of national law on the requesting of information on previous offenses of the person concerned where necessary, which would turn the possibility for organisers of activities involving regular contact with children to request a potential employee's or volunteer’s criminal record into an obligation. This would go a long way in ensuring that they do not bring persons with a criminal record in this area into contact with children. It will also alert national authorities and prevent any future offenders from offending in another Member State. One of the main elements of this Policy Option is that prevention programmes for offenders would exist both inside and outside of prison, and to strengthen the use and efficiency of ECRIS and the SIS, which will therefore increase the likelihood of successfully preventing any child sexual abuse offences from being committed abroad.

7.1.2Facilitating investigations and prosecution

Policy Option A would reinforce the criminal justice response to child sexual abuse, as Member States would have to amend their criminal codes or codes of criminal procedure. The evaluation found 170 that certain aspects of the criminal justice response to the crime are not sufficiently and/or adequately addressed in the Directive. Policy Option A would aim at addressing these gaps, in particular when it comes to creating rules on pornography depicting children, clarifying exemptions from criminalisation which will thereby allow CSAM to be reported or accessed for the purpose of reporting it to law enforcement when this is established beyond any reasonable doubt, and clarifying the time-limit for status of limitations.

With respect to the criminalisation of additional forms of exploitation, Option B would contribute to a stronger response to the crime as it broadens the scope of the Directive to include deep fake images certain fictitious material and child sex dolls as has already been implemented by certain Member States and it would criminalise live-streaming of children as a stand-alone-offence. This will ensure prosecution and facilitate international cooperation in trans-border cases, thereby reflecting the most pressing concerns which have been highlighted by stakeholders as described in the Evaluation Study 171 . The list of the forms of child sexual abuse would remain non-exhaustive, which means that Member States would still have the option to include more purposes of child sexual abuse than those explicitly mentioned in the Directive.

Moreover, with a stricter approach to the sanctions against offenders on a cross-border dimension, Policy option C would increase the criminal justice response. Therefore, Option C would go further than Option B in holding offenders accountable for trafficking offences, encompassing requirements to ensure that existing tools lead to an efficient exchange of information, and establishing national coordinators on child sexual abuse who will analyse best practices.

7.1.3Improving protection and support of victims of child sexual abuse

Policy Options A and B would ensure that criminal proceedings should continue even if a victim has withdrawn his or her statements, thereby ensuring better victim protection. These Policy Options would protect all types of victims with a particular focus on children with disabilities. They would ensure that victim services can actually be provided online and can be available all day long and throughout any day of the week. The victim services will be accessible for children with disabilities and reasonable accommodation provided.

Yet, Policy Option C would be more effective in ensuring that victims receive adequate assistance, support and protection across the Member States including collecting disaggregated data on categories, as the harmonisation of practices and procedures for the identification and referral of the victims would be considerably limited if Member States do not have a possibility to coordinate at the EU level that would provide them with support in its application at the national level.

7.2 Efficiency

The Policy Options would not incur any costs on businesses and companies, or on citizens.

Support to the knowledge and expertise of national authorities on fighting child sexual abuse will already be provided by the EU Centre, under the Proposed Regulation to Fight Child Sexual Abuse.  

Under Option C, the work of the national coordinators would require limited additional financial and human resources, which would be mainly revolve among national figures already experts on child protection in national ministries. While some of the targeted legislative amendments under Option A and Option B may already be to a certain extent covered in some national legal systems, this does not detract from the overall impact of harmonisation and EU standard setting.

Moreover, while certain new crimes described in Option B such as live-streaming already fall within the scope of the Directive in some respects, its explicit addition to the definition and as a stand-alone offence is expected to further encourage national authorities to step up their efforts in fighting this growing trend, and to reduce impunity. Adapting the definition of offences to include those committed in the virtual reality environment will further strengthen national authorities’ strategies to counter them, encompassing a wide range of efforts such as research strategies to prevent this emerging phenomenon, close coordination with civil society and professionals such as child psychologists to support victim assistance, and developing new technological tools to investigate and fight this growing trend.

With Option C, national authorities would have to identify clear benchmarks to assess prevention programmes and assistance to victims’ strategies, which will include a wider data collection strategy and a more detailed qualitative analysis of the efficiency of such programmes and strategies. The overall increase in efficiency connected with Option C allows to consider it as a preferred option despite its higher administrative burdens.

7.3 Coherence

The evaluation found 172 that the Directive risks not being coherent with upcoming relevant EU legislative instruments which were able to take into account recent societal and technological developments, such as the proposed Directive on combating violence against women and domestic violence and the Proposed Regulation to Counter Child Sexual Abuse. The three policy options are expected to restore the coherence with these initiatives, as described in Section 5.3.

Policy Options A to C would be coherent with the Proposal for a Directive on combating Violence Against Women, as they would introduce a higher level of penalties and sanctions for certain crimes which would correspond to the level of penalties and sanctions introduced in the Proposal for a Violence Against Women Directive, and as they would incorporate new definitions of child sexual abuse, including in its online dimension, thereby rendering both legal instruments more effective in light with changing realities in this criminal field.

7.4 Necessity and Relevance

The necessity of EU action in the area of fighting child sexual abuse is demonstrated in Section 3.2.1 and in the evaluation. All the policy options are considered to be proportionate actions that would enhance the response to fighting child sexual abuse within the EU.

Policy Option A and B aim at addressing the gaps identified in the evaluation 173 , also through legislative changes in the EU framework. Policy Option C would combine all the above options, thereby ensuring a stronger response to countering child sexual abuse in light of the developing challenges and phenomena encompassing it.

7.5 Subsidiarity and Proportionality

Section 5.3 of the Impact Assessment already explains how this initiative meets the principles of subsidiarity and proportionality. As the legislative measures under Policy Options A to C only consist in targeted amendments to the Directive, limited to the areas where EU action has added value and Member States action has proven insufficient, the principles of subsidiarity and proportionality are respected.

8Preferred option

8.1 Summary of the preferred option

The preferred option is Option C, which includes targeted amendments to the Directive in line with the EU Strategy for a more effective fight against child sexual abuse. Member States would have to adapt their criminal codes and codes of criminal procedure. Table 3 presents the preferred legislative measures among the list of legislative options in Section 5.2.2 and objectives to which they contribute to.

Table 4 – Summary of the preferred option (Option C)

8.2 REFIT (simplification and improved efficiency)

In compliance with the Commission’s Regulatory Fitness and Performance Programme (REFIT), all initiatives aimed at revising existing EU legislation should seek to simplify and reduce administrative burden on Member States. The impact assessment concludes that the preferred option would have an administrative burden which would be offset by the positive impact of the measures on the prevention and fight against child abuse, and protection of the victims of this crime.

The targeted amendments to the Directive are aimed at improving Member States’ capacity to fight the crime efficiently, in relation to threats and trends that have emerged and evolved within the past years and with new technological developments. New rules applicable to the Member States are expected to enhance cross-border cooperation, both in terms of investigations and prosecutions, as well as victims’ assistance and support.

The initiative will further clarify the legal landscape addressing fighting child sexual abuse across the Member States. The regulatory burden related to the preferred option would be of limited scope, as it mostly consists in improving existing provisions rather than creating completely new obligations. Member States already investigate, prosecute and punish offences related to child sexual abuse as they stand, and Option C would merely introduce a few more definitions and stand-alone offences related to child sexual abuse, which will have a very significant impact on countering the crime. Most of the regulatory and administrative burden on Member States would stem from coordination obligations, the identification of clear benchmarks, and data collection modifications.

The prevention and assistance to victims measures envisaged in Option C are not entirely new obligations, as under the current text of the Directive, Member States already had to establish prevention mechanisms and support victims. With Option C, they will have to identify clear benchmarks to assess the effectiveness of prevention and victim assistance programmes, which might require more coordination and administrative burdens.

All Member States already collect data on child abuse, and Option C would merely ensure better collection methods coupled with more transparency and better reporting. Therefore, introducing a requirement for Member States to collect data on specific indicators and on a regular basis as part of Option C, would not trigger significant additional burden. This legislative change is expected to simplify the work of the National Statistical Authorities and generally improve the quality and availability of the statistics. Moreover, the developing of guidelines, in close cooperation with relevant national authorities, would reduce the regulatory and administrative burden on national authorities.

8.3 Application of the ‘one in, one out’ approach

The ‘one in, one out’ approach refers to the principle whereby each legislative proposal creating new burdens should relieve people and businesses of an equivalent existing burden at EU level in the same policy area.

As explained in the previous sections, this initiative would not entail administrative costs for the private sector, and, as to administrative and adjustment costs and savings, it would mainly concern public authorities.

The preferred option creates administrative and adjustment costs for administrations. These are costs that result of administrative activities performed to comply with the obligations included in the proposed initiatives, which Member States will have to adjust to. They concern costs for setting up efficient prevention programmes, providing and sharing detailed information, adjusting to have a stronger victim support network. The preferred option will also generate direct adjustment costs for law enforcement, due to the increased workload to deal with cross-border investigations and partnerships.

On the other hand, the proposed initiatives will support emerging legislative instruments: the Proposed Directive on combating violence against women and domestic violence and the Proposed Regulation to Counter Child Sexual Abuse. This would generate savings on administrative costs for public authorities, in particular through the anticipated compliance with harmonised law across Member States.

Furthermore, the initiative is expected, in the longer term, to generate significant cost savings to society, derived from a reduction in child sexual abuse crimes (e.g. reduction in productivity losses, see section 6.2.2).

9How will actual impacts be monitored and evaluated?

The actual impacts of the preferred option, i.e. the actual progress in the fight against child sexual abuse offline and online, will be monitored and evaluated against the three specific objectives. The indicators would build on those of the 2011 Directive to minimise disruption and costs.

The specific objectives basically aim to strengthen the prosecution, prevention of abuse, and support to victims. The specific objectives have corresponding operational objectives, which would be monitored using various data sources through indicators, which both Member States and the Commission would be responsible for collecting and sharing.

The table below identifies an indicative and non-exhaustive list of operational objectives and corresponding monitoring indicators for the measures identified under the preferred option.

Annexes

Annex 1: PROCEDURAL INFORMATION    2

Annex 2: Stakeholder consultation    

Annex 3: Who is affected and how?    

Annex 4: Analytical methods    9

Annex 5: Evaluation of 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/JHARelevant legislation and policies    

Annex 1: Procedural information

1. Lead DG, Decide Planning/CWP references

This Staff Working Paper was prepared by the Directorate-General for Migration and Home Affairs (HOME). HOME is the lead DG for the evaluation and the impact assessment of the 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.

The Decide reference of this initiative is PLAN/2021/10693.

This initiative appears in the 2020 EU Strategy for a more effective fight against child sexual abuse under pillar I, ‘Implement and develop the right legal framework to protect children’.

2. Organisation and timing

Organisation

The Terms of Reference for carrying out an external study to support the evaluation of the Directive on combating child sexual abuse and exploitation and child pornography and an impact assessment for a proposal for a Directive (Recast) on the topic were launched on 2 July 2021 with a deadline on 9 August 2021. An evaluation committee consisting of staff from DG HOME and DG JUST selected an external contractor to conduct the study on 30 September 2021 174 . In light of other commitments, the start of the study was postponed to 1 December 2021 and the kick-off meeting of the contract for the study took place on 12 December 2021. The contract had a duration of 12 months and was finalised in November 2022.

The combined evaluation roadmap and inception impact assessment for the initiative was published by DG HOME on the Commission’s “Have your say” webpage on 28 September 2021 until 26 October 2021. The Commission carried out a public consultation from 20 April 2022 to 13 July 2022, which was also published on “Have your say” webpage.

The Inter-Service Group (ISG) on Child Sexual Abuse and Exploitation, which already existed, was composed of several Directorate-Generals within the Commission 175 . The meetings of the ISG were chaired by DG HOME. The steering group was regularly consulted over the course of the evaluation and impact assessment, in particular on the draft reports of the contractor responsible for carrying out the external study. The following list provides an overview of the work of the ISG:

·The ISG was consulted in June 2021 in order to provide feedback on the draft Terms of Reference for the external study.    

·The ISG was invited to provide feedback on the combined evaluation and inception impact assessment in July 2021

·On 12 December 2021, the ISG was invited to the kick-off meeting of the external study with the contractor.

·In January 2022, the ISG was consulted on the consultation strategy and the public consultation questionnaire and the inception report from the study supporting the evaluation and impact assessment of the Directive.    

·On 13 July 2022, the ISG was invited to participate in the meeting to discuss the initial submission of the interim report of the study, drafted by the contractor. The report was subsequently accepted after revisions were made to reflect the comments of the ISG.

·The ISG, as well as DG HOME relevant units, were consulted in writing throughout the evaluation and impact assessment process and their comments to the external study were duly taken into account.    

·On 16 September 2022, DG HOME shared with the ISG the final version of the interim report supporting the back-to-back evaluation and impact assessment of the EU Directive on combating child sexual abuse.

·On 30 November 2022, the final report of the study was re-submitted by the contractor to DG HOME for revisions and subsequently accepted.

·A (written) informal consultation with the ISG on the Staff Working Documents on the Evaluation and Impact Assessment took place between 24 October and 17 November 2022.

The last meeting of the ISG, chaired by DG HOME, was held on 17 November 2022. The Regulatory Scrutiny Board received the impact assessment report on 13 December 2022. On 20 January 2023 the RSB issued a positive opinion with reservations.

 Timeline and chronology of the IA

This initiative was first announced in the July 2020 EU strategy for a more effective fight against child sexual abuse1, where the Commission notably committed to:

Identify legislative gaps, best practices and priority actions at EU level in the fight against child sexual abuse online and offline, and assess whether the Child Sexual Abuse Directive needs to be updated.

·On 28 September 2021, the Commission published the Inception Impact Assessment for 4 weeks, until 26 October 2021; 17 feedbacks were received. DG HOME has analysed the reactions to the IIA and taken them into account for the purposes of the Impact Assessment.

·The impact assessment itself is based on an evaluation of the Child Sexual Abuse Directive, which was carried out in 2022 back-to-back and was supported by a study.

·On 20 April 2022, the public consultation was launched. The consultation lasted until 13 July 2022; 49 replies were received.

·Targeted consultations and interviews took place in Q2-Q3 2022, with Member State experts and stakeholders.

·The final meeting of the ISG, chaired by DG HOME, was held on 17 November 2022.

3. Consultation of the RSB

The Regulatory Scrutiny Board received the impact assessment report on 13 December 2022. The RSB meeting on the Impact Assessment took place on the 18 January 2023.

On 20 January 2023 the RSB issued a positive opinion with reservations, stating that DG HOME had to take the RSB’s recommendations into account before launching the interservice consultation once more, which is currently planned for November 2023.

The main modifications made in light of the RSB’s comments are detailed in the following table down below.

 4. Evidence, sources and quality

The main source of evidence for the present Impact Assessment is the evaluation of the Child Sexual Abuse Directive, which was accompanied by a public consultation (20 April to 13 July 2022) and an external support study 176 .

The CSAE Directive has inspired the organisation of six expert workshops (from 17 January 2018 to 6 September 2019) by the Commission, which were held to gather info on challenges and emerging issues on the implementation of some aspects of the Directive. The workshops offered an arena to discuss key issues regarding the implementation of the CSAE Directive as well as its relevance in light of new and emerging issues that affect the intra-EU effort to fight against CSAE.

In addition, the Commission, represented by the Joint Research Centre and the Directorate- General Home Affairs and Migration’s Security for the Digital Age unit, organised a series of Thematic Workshops involving experts to support the identification of criteria for classifying 4 and for evaluating prevention programmes covered by Articles 22 and 24 of the CSAE Directive. These steps support EU Member States and other countries in putting effective prevention initiatives in place for persons who fear they might offend against children 177 .

Additional external expertise was gathered through the following stakeholder consultation methods: scoping interviews, desk research, online survey, public consultation, targeted interviews, case study interviews, and workshops, as explained in detail in Annex 2.

Annex 2: Stakeholder consultation (Synopsis report)

1. Consultation Strategy

The consultation strategy was built upon the information already collected as part of the evaluation of the Child Sexual Abuse Directive, notably with a view to consider further non-legislative measures and legislative adjustments. More precisely, the consultation strategy in the framework of the Impact Assessment aimed at identifying and assessing possible policy options and assist in the calculation of their costs and benefits. In this context, the views of stakeholders on elements to be included (or not) in a legislative proposal were collected in order to enable the Commission to table a good proposal.

The objective of the consultations in the context of the impact assessment on the revision of the child sexual abuse and exploitation acquis was therefore twofold:

1. to collect the views of stakeholders about possible options to tackle the problems identified in the evaluation, including by seeking feedback on the recommendations that emerged as a result of the evaluation exercise;

2. to gather information about possible additional problems that were not covered by the evaluation of the Child Sexual Abuse Directive.

2. Consulted stakeholders

The following key stakeholder categories have been identified for the consultation in the framework of the revision of the Child Sexual Abuse Directive:

·Member States’ national authorities involved in the implementation of the Directive and in furthering its transposition (e.g. law enforcement agencies, prison, detention and parole services, administrative, child protection, and judicial authorities) and regional and local authorities

·Relevant agencies (including Europol, Eurojust & the Fundamental Rights Agency (FRA))

·Relevant organisations in third countries, including the US National Center for Missing and Exploited Children (NCMEC), and the Canadian Centre for Child Protection (C3P)

·Relevant international organisations, including the Council of Europe

·Relevant industry stakeholders

·Hotlines, including the EU funded INHOPE network, and other child protection, child rights, prevention and privacy focused civil society organisations,

·Relevant researchers and academics

·The general public

Short description of the methodology and tools used to process the data

The consultation activities focused on online surveys, targeted interviews, virtual study visit interviews, online questionnaire focused on the costs of identified policy options, case study interviews focused on the costs/impacts of identified policy options, and workshops.

The following actions were carried out in the framework of the consultation:

•    The Commission launched an internet-based public consultation in all 24 official EU languages. The consultation was questionnaire-based. The consultation period was twelve weeks. The outcome of the public consultation was analysed by an external contractor.

•    Data collection process: 

oDesktop research: The study team has performed extensive desk research activities to carry out the analyses included in this report. A comprehensive and systematic literature review was performed to inform the analysis of the scale, scope and key features of CSAE (Chapter 3) and the assessment of the Directive in accordance with the five evaluation criteria (Chapter 0 provides the evaluation results for the evaluation criteria; relevance, effectiveness, efficiency, coherence and EU added value). The most relevant EU and international initiatives to the fight against CSAE have been examined to draw the policy context relevant to the EU efforts to fight against CSAE. Moreover, a detailed review of the criminal codes (CC) and other relevant national laws transposing the Directive has been carried out assessing the extent to which the Member States have taken the necessary measures to comply with the Directive. Finally, database searches have supported the collection of statistics and data informing the magnitude of CSAE, as well as the analysis of the efficiency of the CSAE Directive.

oField research: The Commission organised field research activities (open surveys and targeted consultations) with MS experts, EMPACT, EU bodies/agencies, international bodies, civil society organisations, prison, detention and restorative justice specialists, education institutions and teachers, representatives from ICT private companies, government-led authorities (including ministries), judicial authorities, law enforcement authorities, and hotlines. An overview of the progress made in engaging stakeholders through the online survey and targeted interviews is available below.

3. Targeted consultations

The following targeted consultations were carried out in the framework of the impact assessment:

4. Outcomes of the consultations

4.1 Inception impact assessment

In total, 17 replies were submitted: 10 by non-governmental organisations, 2 by companies and business organisations, 2 by EU citizens, 2 by EU citizens, 2 by other entities and 1 business associations. Interested stakeholders could provide feedback to the Inception Impact Assessment from 28 September to 26 October 2021.

This combined evaluation roadmap/Inception Impact Assessment aims to inform citizens and stakeholders about the Commission's work in order to allow them to provide feedback on the intended initiative and to participate effectively in future consultation activities. Citizens and stakeholders are in particular, invited to provide views on the Commission's understanding of the current situation, problem and possible solutions and to make available any relevant information that they may have, including on possible impacts of the different options. The Roadmap published by the Commission to inform the possible revision of the CSAE Directive, includes four different types of intervention:

·Policy option 1: baseline scenario. This option would imply no further action from the EU. The European Commission would continue to support Member States to fully implement the provisions of Directive 2011/93/EU;

·Policy option 2: Complementing existing legislation with non-legislative measures. This option would consist in additional financial support, and coordination activities aimed at enhancing Member States’ efforts in the area of prevention, investigations and prosecution as well as support to victims.

·Policy option 3: New legislation on prosecuting offenders, protecting victims and preventing offences. This option would set out a new legislative framework that would build on the existing CSAE Directive. The intervention would take into account advances in technology, new terminology, categories of criminal acts, ensure effective prevention initiatives, protection and support to victims, and other challenges that have arisen since the adoption of the CSAE Directive in 2011.

·Policy option 4: New legislation on prosecuting offenders, protecting victims and preventing offences plus non-legislative measures. This option entails legislative amendments to the CSAE Directive as proposed in policy option 3 as well as the introduction of the non-legislative measures as provided in policy option 2.

Eleven of the stakeholders replying to the Roadmap consultation advocated for policy option 4, two stakeholders supported policy option 3 whilst another stakeholder supported policy option 2.

Respondents further included suggestions on policy measures with regards to:

·Threats posed by the online environment

Respondents were in favour of new rules concerning the emerging risks of abuse posed by the technological developments (e.g. the Metaverse and decentralised networks) and the increasing use of technologies by both children and perpetrators. Besides new rules towards more efficient criminalisation of emerging CSAE-related offences (e.g. online grooming, live-streaming, self-generated CSAM circulating online, revenge porn, AI-child sex robots, and deep fakes), respondents pointed out that the concept of ‘child pornography’ shall be replaced with “child sexual abuse material” (CSAM), in line with the ECPAT’s Luxembourg Guidelines. This new definition shall cover all forms of CSAE happening online and offline, including virtual CSAM in the form of cartoons, mangas, drawings and fantasy descriptions. Finally, it is suggested that new rules are future-proof with respect to the way technology and tech-enabled crimes are regulated. Adding ‘in any form and by any means whatsoever’ to the definition of criminalised acts would render the measures easily adaptable to future technological developments and tech-enabled crimes.

·Child-friendly and sensitive justice

Respondents supported a revision of the CSAE Directive towards ensuring child-friendly justice systems. This means that children should receive information about their rights and their involvement in the proceedings in a format and language that they can understand and that is tailored to their specific needs and age. To this end, authorities should, inter alia, adopt approaches that take into account the experienced trauma and gender-specific needs of the victims.

·Prevention initiatives

Many stakeholders state the need for awareness-raising activities to avoid children becoming victims of CSAE (e.g. through social campaigns and workshops) targeting the public and professionals working with minors, as well as for education programs in schools across the EU, including on themes such as sexual consent, gender equality, and online safety. Prevention initiatives targeting children should be age-appropriate and take into account gender-specific needs. Likewise, special attention to specific needs should be paid when designing prevention programmes for foster children, children in institutional care or living in domestic environments posing risks of becoming victims. Further, stakeholders expressed the need for mandatory rehabilitation programmes for CSAE-convicted felons and alternatives to imprisonment to avoid offenders’ recidivism.

·Removal and blocking of CSAM online

Internet Service Providers (ISPs) need clear and mandatory rules on the detection, reporting blocking and removal of CSAM in their services, which should also be held accountable for failure to act. To render such procedures effective, cooperation between ISPs and LEAs authorities should be strengthened.

·Creation of an EU centre

Respondents supported the creation of a European Centre dedicated to the fight against online CSAE, as outlined in the Proposal for a Regulation laying down rules to prevent and combat child sexual abuse. The Centre will facilitate CSAE prevention and enhance cooperation in delivering justice not only within the EU but also working with jurisdictions outside of the EU. Stakeholders raised that the operational activities and methods of the European Centre remain unclear and should be defined. To this end, the Centre would benefit from an EU-wide set of updated terminology and definitions.

[Add. info: One respondent further suggested the creation of an innovation hub within the proposed EU centre to prevent and counter child sexual abuse online that encourages collaboration amongst the tech industry as well as Member States, civic society and law enforcement, with a view to building best practice in response to the current and emerging challenges in preventing online child abuse and exploitation.].

4.2 Public consultation

The Commission carried out an open public consultation targeting the general public with the aim of collecting information, evidence, and views on the issues at stake and to feed into the evaluation questions. In the context of the study, a PC in all EU official languages concerning the evaluation of the CSAE Directive and a preliminary discussion on the objectives of a policy intervention to review it was carried out via the Commission’s tool EU Survey 178  which remained open from 20 April 2022 to 13 July 2022. Overall, 49 responses were received from stakeholders in 23 countries, including 18 Member States (AT, BE, CZ, DE, DK, EE, EL, ES, FI, FR, HR, HU, IT, MT, NL, PT, SE and SI) and five third countries (Canada, Iran, Thailand, UK and US).

In addition to the replies to the PC questionnaire, 21 written contributions were received, including eleven contributions from Civil Society Organisations, three from representatives of business organisations, four from ICT companies, one from a representative from a national ministry of justice, one from a legal expert and one from a EU citizen.

Regarding the profile of the respondents, 20 answered the survey as individuals (19 EU citizens and one non-EU citizen), while the remaining 30 respondents answered on behalf of an organisation (seven public authorities, two business association, one company/business organisation, 20 non-governmental organisations - NGOs). The size of the concerned organisations was the following: seven large (250 or more employees), seven medium (50 to 249 employees), six small (10 to 49 employees) and 10 micro (1 to 9 employees) organisation. (Table 1)

Table 1: Public consultation responses by type of respondent

Among the 49 replies, 2 were from victims of child sexual abuse and 2 from friends or relatives of victims of child sexual abuse. A total of 17 replies came from non-governmental support services for victims of child sexual abuse and sexual exploitation, and 2 from governmental support services for victims of child sexual abuse and sexual exploitation.

8 responses came from France (16.3%). The second largest number of contributions came from Germany (14.29 %, n=7), followed by Netherlands (8.16%, n=4) and Spain (6.12%, n=3). This was followed by Belgium (4.08%, n=2), Czechia (4.08%, n=2), Greece (4.08%, n=2), Italy (4.08%, n=2), Malta (4.08%, n=2), Portugal (4.08%, n=2), Sweden (4.08%, n=2), and Thailand (4.08%, n=2).10 countries had one contribution (Table 2).

Table 2: Responses to public consultation by country

A summary of the key findings from the public consultation, grouped by evaluation criterion, is provided below. It should be noted that this summary is not exhaustive and rather presents some of the key results of the public consultation.

Replies to the PC questionnaire

This section presents the main points that emerged from the responses to the PC. For each key finding, the share of respondents confirming the finding is provided, out of the total number of respondents to the question (both in percentage and in absolute numbers).

To what extent was the intervention successful and why?

Effectiveness

Considering the effectiveness of the EU action in the field of CSAE, the large majority of respondents (88%, n=44 out of 50) agrees that an EU-wide cooperation framework is necessary to effectively combat this crime.

More in details, in terms of crime investigation and prosecution, the majority of stakeholders stated that the CSAE Directive contributed to successful criminal proceedings to a moderate or high extent (78%, n=28 out of 36), and that the penalties foreseen by the CSAE Directive have a proportionate and dissuasive effect to a moderate, high or very high extent (66%, n=23 out of 35). Also, the extension of the statute of limitation after the victim has reached the majority was mentioned as the key provision of the CSAE Directive that contributed the most to increasing reporting of CSAE cases (60%, n=24 out of 40 respondents answering very high or high extent). The possibility to continue investigation and prosecution of CSAE offences even if the victim’s statement was withdrawn was mentioned among the key measures that contributed to improving the investigation and prosecution of offenders (50%, n=9 out of 18 respondents answering very high or high extent).

Regarding the support and assistance provided to victims, the contribution of the CSAE Directive was deemed as very high, high or moderate extent by the large majority of stakeholders (68%, n=26 out of 38). Also, according to 71% (n=23 out of 32) of respondents, the CSAE Directive contributed to ensuring that victims are not punished for their involvement in criminal activities that they may have been compelled to take part in, or were involved in unknowingly, from a moderate to a very large extent. Moreover, 76% of respondents (n=19 out of 25) agreed that the CSAE Directive contributed to ensuring protection of victim's privacy, identity and image during criminal proceedings to a moderate, high or very high extent.

Considering the prevention of CSAE, many respondents provided a positive feedback (very high and high extent) regarding the contribution of the CSAE Directive towards the removal/blocking of webpages containing or disseminating CSAM (44%, n=20 out of 45). Positive feedback was also provided regarding the contribution of the CSAE Directive towards the establishment of prevention programmes targeted at people who have not committed a crime but fear they may offend against children (41%, n=15 out of 37).

Finally, the large majority of stakeholders (70%, n=14 out of 20) confirmed that harmonised monitoring mechanisms aimed at measuring the extent of CSAE crimes currently exist in their countries.

Efficiency

Considering the efficiency of the CSAE Directive, the large majority of respondents considered that the positive effects of the Directive were achieved at a reasonable cost (88%, n=7 out of 8) and that its implementation did not cause unnecessary administrative burden (86%, n=12 out of 14).

Coherence

In terms of the coherence of the CSAE Directive with other relevant EU legislation, all respondents agreed that it is coherent with the EU Anti-Trafficking Directive (100%, n=17 out of 17). Also, according to the large majority of respondents, the CSAE Directive is coherent with Regulation 2021/1232 (82%, n=14 out of 17) and with the Victims’ Rights Directive (95%, n= 20 out of 21). Similarly, the CSAE Directive is considered coherent with international instruments and standards such as the Council of Europe Convention on protection of children against sexual exploitation and sexual abuse (95%, n=21 out of 22), the United Nations Convention on the Rights of the Child (92%, n=22 out of 24) and the Sustainable Development Goals (93%, n=13 out of 14).

How did the EU intervention make a difference and to whom?

EU added value

According to the large majority of respondents (92%, n=34 out of 37), the CSAE Directive made it easier for the Member States to tackle CSAE and CSAM. More in details, the CSAE Directive contributed to reducing the occurrence of CSAE to a very high, high or moderate extent in particular in relation to child sex tourism (63%, n=12 out of 19), the prostitution of minors (61%, n=11 out of 18), the prevalence of offending (both contact offences and otherwise) (55%, n=11 out of 20) and online sexual abuse and exploitation (55%, n=12 out of 22).

Is the intervention still relevant?

Relevance

Regarding the relevance of the CSAE Directive, respondents agreed that the CSAE Directive contributed to a very high, high or moderate extent to:

Equipping children with the right knowledge and skills needed to support healthy sexual development whilst staying safe online, including by identifying and reacting appropriately to risky situations (58% (n=26 out of 45));

Addressing issues caused by the development of new technologies including use of peer-to-peer networks, end-to-end encryption and crypto-currency to facilitate this crime, artificial intelligence and use of deep-fakes (48% (n=21 out of 44));

Addressing the increasing online dimension of this crime including e.g. the online production and distribution of CSAM, live streaming of abuse, hosting of this material in bulletproof online spaces etc. (54% (n=25 out of 46)).

Revision of the CSAE Directive

Subsidiarity

The large majority of respondents (94%, n=45 out of 48) agreed that the fight against CSAE continues to require action at the EU level, and it fully respects the subsidiarity principle.

Specific objectives

The majority of respondents agreed that a potential revision of the CSAE Directive should aim to address specific new and emerging challenges that are not and should be covered at the EU level, such as the monetisation of CSAM and novel ways to carry out child sex tourism including live-streaming of abuse (86%, n=36 out of 42), the threats posed by ongoing technological developments including deep fakes and AI-child sex robots, and the metaverse (85%, n=34 out of 40), as well as the increasing online dimension of CSAE (83%, n=35 out of 42).

Moreover, many stakeholders (83%, n=38 out of 46) agreed that the CSAE Directive should be revised in order to require the Member States to nominate a national authority in charge of coordinating the effort against CSAE at the national level. Also, a recast CSAE Directive should include legal harmonisation regarding: the age of sexual consent (73%, n=16 out of 22), civil damages awarded to victims (65%, n=15 out of 23), the definition of the effectiveness of prevention programmes (82%, n=18 out of 22), the investigative tools and techniques allowed to combat CSAE (91%, n=21 out of 23), self-generated material (88%, n=21 out of 24) and the start of the limitation period (67%, n=14 out of 21).

Finally, the majority of respondents stated that the CSAE Directive should more prominently articulate the gender dimension, in particular the protection of girls (63%, n=26 out of 41), and the situation of groups of children particularly exposed to the risk of becoming victims, including children from a disadvantaged background and at risk of social exclusion, Roma children, children with disabilities, LGBTQI+ (76%, n=32 out of 42).

Written contributions

4.3 Online survey

As indicated above, in total 67 responses were received to the online survey: 18 from National Competent Authorities, 15 from CSOs, 13 from law enforcement authorities, 11 from judicial authorities, 10 from hotlines.

This section presents the main points that emerged from the responses to the online survey.

Child sexual abuse and exploitation in the EU

Considering main trends relevant to CSAE, most respondents claimed that the number of offences prosecuted related to child pornography (69%, n=22 out of 32), offline CSAE (46%, n=12 out of 26), and online CSAE (66%, n=19 out of 29) increased (by more than 5%) over the past ten years, 179 though the increase appears to be most significant for crimes related to online CSAE and child pornography. It is unclear the extent to which the CSAE Directive has contributed to such an increase. Some respondents (n=4) mentioned that the increase in the number of prosecutions went hand in hand with the ongoing increase in the number of online CSAE offences, which has led to an increase in resources dedicated to prosecution. Other respondents (n=5) suggested that the CSAE Directive’s implementation has contributed towards raising awareness about CSAE, which resulted in improved detection of CSAE offences, also due to an increase in related reporting. 180

To what extent was the intervention successful and why?

Effectiveness

Regarding investigation and prosecution of CSAE offences, survey respondents confirmed that the CSAE Directive’s implementation has enhanced the use of appropriate investigative tools to fight against CSAE. Most respondents (77%, n=34 out of 44) agreed that the CSAE Directive’s implementation had a moderate or even large effect on ensuring that law enforcement have access to the right tools to investigate cases of CSAE. 181 Two respondents mentioned that the CSAE Directive’s implementation had helped introduce high-tech and specialised tools for investigating CSAE cases. 182 Also, a large share of respondents agreed that the sanctions foreseen by the CSAE Directive are dissuasive (44%, n=22 out of 50), effective (48%, n=25 out of 52), and proportionate (51%, n=27 out of 53) to a large or very large extent. 183 Nevertheless, the share of respondents that considered such sanctions as only moderately dissuasive is still considerable (34%, n=17 out of 50). 184 Finally, the majority of respondents confirmed that there is high variance in terms of what materials constitute “child pornography” according to Member States’ legislations. Depending on specific national definitions included in different Member States’ legislations, “child pornography” can include AI robot (51%, n=24 out of 47), anime and manga depicting sexual images of children (63%, n=35 out of 56), child sex dolls (51%, n=27 out of 53), deep fake (67%, n=32 out of 48), literary novels romancing child sexual abuse (39%, n=20 out of 51) and texts explaining how to groom (46%, n=23 out of 50). 185

With respect to reporting mechanisms, most respondents (99%, n=66 out of 67) identified hotlines (phone or online) as the main available avenue for reporting cases of CSAE in their country, followed by social media platforms (61%, n= 41 out of 67) and focal points (teachers/educators) (52%, n=35 out of 67). Most respondents also had positive views about their national hotlines, which they deemed to be confidential (89%, n=54 out of 61), user-friendly (65%, n=40 out of 62), well-known (41%, n=26 out of 63), and responsive (59%, n=35 out of 59) to a large or very large extent. 186 Moreover, most respondents (72%, n=38 out of 53) found that confidentiality rules in their countries are not a constraint to reporting cases of CSAE. 187 As anecdotal evidence, one respondent elaborated that CSAE can be reported anonymously at the national level, while another one finds that health and social care workers struggle with their professional confidentiality obligations.

Regarding CSAE prevention, most respondents (60%, n=27) considered that the CSAE Directive’s implementation has contributed to preventing repeated offences against children (e.g. stopping offenders from holding professional positions that bring them in regular and direct contact with children), at least to a moderate, large or very extent. 188 Yet, 29% (n= 13 out of 45) of respondents still claimed that the CSAE Directive’s contribution had little if any contribution in this regard. Although several stakeholders (44%, n=17) considered that its contribution was moderate or large, the majority of respondents (50%, n=19 out of 38) deemed that the CSAE Directive’s implementation only contributed to a small extent, or it did not contribute at all, to preventing abuses of children with disabilities. Similarly, most respondents (59%, n=20 out of 34) considered that the CSAE Directive’s implementation had contributed to preventing abuses of children with specific gender needs (e.g. girls, boys, LGBTQI+) to a small extent, or it did not contribute at all. However, according to most respondents, the CSAE Directive has contributed to a moderate, large, and very large extent towards the prevention of child abuses in the context of migration (53%, n=17 out of 32), the uploading, access to, and dissemination of CSAM (71%, n=30 out of 42), and the dissemination of material advertising the organisation of travels to commit CSAE (66%, n=23 out of 35). Further, most of respondents (64%, n=25) considered that the implementation of the CSAE Directive has contributed to preventing first-time offences against children (e.g. through intervention programmes to persons who fear they might offend) to a moderate, large or very large extent. Also, some respondents (n=4) highlighted that initiatives or measures targeting potential offenders are still insufficient, and that they are often the result of independent actions taken by the single CSO, rather than a direct result of the CSAE Directive implementation. 189

Most of the survey respondents (77%, n=19 out of 53) considered that the CSAE Directive’s implementation has contributed to facilitating access by child victims to assistance and support measures available to them (e.g. legal remedies and appropriate specialist protection measures) at least to a moderate, or to a large or very large extent. Some survey respondents reported that support services are made available as long as necessary (n=8), or that the period is determined on a case-by-case basis (n=2). 190 Moreover, most of the survey respondents (51%, n=27 out of 53) considered that the CSAE Directive’s implementation has contributed to ensuring that victims of CSAE do not suffer additional trauma and harm from participating in criminal investigations and proceedings from a large to a very large extent.  191  However, some survey respondents (n=5) commented that many of the assistance and protection services available to CSAE victims were already in place before the implementation of the CSAE Directive. 192  Survey respondents (84%, n=49 out of 58) also considered that efforts at the EU level against CSAE would benefit from additional EU training for judicial and law enforcement authorities working with victims of CSAE, from a large to a very large extent. 193  

To conclude, most of the law enforcement authorities responding to the online survey confirmed they frequently cooperate with other law enforcement authorities (92%, n=12 out of 13) and judicial authorities (84%, n=11 out of 13) in their Member State in relation to CSAE cases. 194 According to respondents, main cooperation mechanisms facilitating coordination of national actors concerned with the fight against CSAE (e.g. including, among others, ad-hoc memorandum, regular exchange of information, ad-hoc cooperation agreement) are available in their country to facilitate coordination of national actors concerned with the fight against CSAE. As to cooperation with authorities in other countries in relation to CSAE, it mainly occurs with law enforcement authorities (39%, n=20 out of 51), competent authorities (34%, n=17 out of 52) and judicial authorities (22%, n=11 out of 51).Some respondents (n=5) also pointed to the role played by the International Association of Internet Hotlines (INHOPE) Network in facilitating cross-border cooperation with third countries’ hotlines and law enforcement authorities. 195

Efficiency

Most survey respondents reported no remarkable increase in the costs entailed by the CSAE Directive, either with respect to investigation and prosecution of CSAE offences, or to CSAE prevention or to the provision of assistance and protection to CSAE victims. Similarly, respondents identified no change in the costs related to the training of professionals working with victims of CSAE in their country. 196 Yet, respondents reported a significant increase in the provision of and participation in trainings following the implementation of the CSAE Directive in their country. According to the majority of survey respondents, the CSAE Directive has contributed to at least a 3% increase in the number of participants taking part in trainings, including member of the judiciary (56%, n=), police officers (58%, n=14 out of 24), and teachers (50%, n=6 out of 12). Conversely, most consulted stakeholders believed that the CSAE Directive limitedly contributed (less than 3%) to increasing the training offer for front-line police officers (55%, n=16 out of 29), professionals in charge of interviewing children during criminal proceedings (56%, n=15 out of 27), and the judiciary adjudicating cases of CSAE (63%, n=12 out of 19). 197  

Is the intervention still relevant?

Relevance

Most of the stakeholders consulted through the survey consider that the CSAE Directive addresses the specific protection needs of different categories of children in the EU to a large/very large extent. 198 Also, the wording of the CSAE Directive is considered by the majority of respondents to be fully in line with the current political sensitivity (52%, n=24 out of 46). 199

Problem evolution

The majority of respondents (74%, n=35 out of 47) agreed that CSAE-related offences will increase in the next 5-10 years. 200 Specifically, growing trends will mainly concern the amount of child sexual abuse material (CSAM) circulating online (n=3), dissemination of CSAM through the darkweb (n=12), online solicitation (n=9), including for the production of self-generated content by victims (n=13) and live streaming (n=4). 201

Many stakeholders (n=6) believe that tech-facilitated means and their ongoing development and use in society represent key threats for the safety of children (n=30), introducing inter alia new forms of child sexual exploitation (e.g. sugaring and survival sex). In particular, they refer to artificial intelligence technologies, like deepfake technologies (n=8), the metaverse (n=2), as well as to malicious uses of tech-based services, like social media and gaming platforms (n=6), often characterised by encrypted communication (n=7), and anonymous online services (n=8), such as cryptocurrency-based payment methods (n=1). Such technological developments pose a serious threat also in light of the diffusion of technological devices and access to social media among many more children and increasingly younger (n=12), combined with a lack of parental control and awareness of the dangers of navigating the web (n=7). 202

Need for EU action

The majority of respondents confirmed the necessity of additional EU intervention to fight against CSAE. Specifically, the three main areas where EU intervention is deemed necessary (to a large and very large extent) are the establishment of: (i) additional EU funding for the fight against of child sexual abuse and exploitation in the EU (95%, n=56 out of 59), (ii) common minimum standards for ICT companies to report cases of online child sexual abuse and exploitation (93%, n=51 out of 55), (iii) additional EU trainings for judicial and law enforcement authorities working with victims of child sexual abuse and exploitation (85%, n=49 out of 58). 203 Furthermore, additional EU action is believed necessary to ensuring a common definition of CSAM (n=5) and common rules to fight against CSAM related offences (n=11), higher level of harmonisation of procedures and penalties during cross-border investigations (n=12) as well as common standards for the use of adequate tools to detect CSAE, including its online format (n=4). 204  

4.4 Targeted interviews

The Study Team planned to perform targeted interviews, aiming at:

·Understanding the current state of the debate on the fight against CSAE in terms of both academic developments and possible policy options;

·Investigating current and future needs and challenges as well as the main policy developments in the fight against CSAE vis-à-vis the Directive’s objectives;

·Investigating the degree of coherence and complementarity in the fight against CSAE between EU interventions and international measures and standards in view of identifying synergies and overlaps;

·Collecting examples of good practices (also from outside the EU) or possible key developments in terms of cooperation and coordination across Member States for the fight against CSAE;

·Gathering recommendations and suggestions for the improvement of the current practices.

Topic guides and the content of interviews were tailored to the expertise of the interviewee. Stakeholders were identified through suggestions from the Commission, a stakeholder mapping process, recommendations from the interviewees, and recommendations from members of the study’s expert panel. Key information was coded into an evidence grid, in relation to each evaluation question.

To what extent was the intervention successful and why?

Effectiveness

Regarding CSAE investigation and prosecution, the interviewees agreed that the CSAE Directive provided for an effective legal framework for investigation and prosecution procedures at the national level. The most reported factor undermining the effectiveness of the CSAE Directives was the absence of a common definition of the “age of sexual consent”. Also, interviewees highlighted that the term “child pornography” should be replaced with a more suitable term: as the term “pornography” is primarily used for adults engaging in consensual sexual acts, hence using the terms “child pornography” might appear to imply a similar legitimacy to that of consensual pornography. A shortage of both financial and human resources available at the Member State level emerged as an additional barrier to investigation and prosecution of CSAE-related offences. Stakeholders agreed that the CSAE Directive has helped investigate and prosecute cross-border online CSAE-related offences, though they broadly agreed its contribution has been insufficient. One interviewee criticised the CSAE Directive’s focus on perpetrators and committed offences instead of regulating the online environment that enabled the crimes.

In the area of assistance, support and protection, interviewees agreed that the CSAE Directive provides for procedural safeguards before, during and after criminal proceedings. Yet, stakeholder claimed that it does not provide for a structured and solid multidisciplinary system of assistance, support and protection of the child. More precisely, interviewees claimed that assistance and protection should be better tailored to the specific needs of children during criminal proceedings. The Barnahus Model was repeatedly referenced as a good practice in the field of CSAE. Three interviews emphasised that underreporting remains a barrier to providing support due to both individual-level constraints (fear of retaliation from perpetrator, risk of ridicule, shame) and lack of adequate reporting systems. According to interviewees, delays and non-child-centred processes hinder the provision of adequate support and protection of children once they have reported an offence.

With regard to the effectiveness of prevention measures, interviewees pointed to education initiatives and awareness-raising activities as the major areas where the CSAE Directive has shown a positive contribution. However, one interviewee claimed that national budget and effort are still too much focused on the repression side of the fight against CSAE, with limited investments in prevention measures. Another interviewee emphasised that, due to insufficient resources available at the Member State level, prevention measures are usually targeted at very specific audiences and lack a comprehensive approach to CSAE prevention. For instance, most secondary prevention initiatives are not targeted at the right audience (e.g. mid 65 years old men are not usually considered, while they represent a significant share of all offenders). Finally, some interviewees pointed to the insufficient offer of initiatives aimed at the prevention of online CSAE offences, which, according to the interviewees, is a consequence of the inadequate coverage of such offences within the CSAE Directive.

Efficiency

Interviewees agreed that, overall, the costs incurred to reach the objectives of the CSAE Directive are balanced by the overall benefits in terms of higher criminalisation and prevention of CSAE offences. However, there are areas where the benefits can still be increased, hence increasing overall cost-effectiveness. For instance, hotlines are expensive to maintain (hardware, software, human time, training) but are not widely used. Interviewees emphasised that prevention initiatives are highly cost-effective as prevention is always less costly than repression. Safety-by-design was raised as an efficient approach to fight against online CSAE. However, such a principle is not widely implemented due to claims of perceived constraints on technological innovation and violations of privacy.

Coherence

The majority of the interviewees reported no issues in terms of coherence of the CSAE Directive with other relevant EU initiatives.

One interviewee pointed to potential inconsistencies between the CSAE Directive and the Lanzarote Convention as regards the definition of solicitation/grooming, which is identical in both measures. Yet, six years ago the Lanzarote Committee pointed out that such a definition is not updated, thus it needs a revision. However, any revision in the Lanzarote Convention should be accompanied by similar revision in the CSAE Directive in order to ensure that the two measures are fully coherent.

Finally, four interviewees raised the challenge of ensuring a balance between requirements included in the CSAE Directive and existing rules concerning data protection and privacy, particularly the right to privacy and confidentiality with respect to the processing of personal data included in the e-Privacy Directive. 205 More precisely, these interviewees claimed that rules included in the Regulation 2021/1232 that allows for a temporary derogation from the e-Privacy Directive should be embedded in the CSAE Directive. 206 However, one interviewee specifies that the rules included in the Regulation 2021/1232 will be embedded in the Regulation laying down rules to prevent and combat child sexual abuse, 207 which is currently under discussion at the EU level.

How did the EU intervention make a difference and to whom?

EU added value

Interviewees agreed that the CSAE Directive provided for a legal framework that stimulated the adoption of rules against CSAE across the Member States. One interviewee pointed out that the minimum common rules provided by the CSAE Directive represent the necessary precondition towards an effective detection, investigation and prosecution of CSAE offences, which have often cyber and cross-border elements. Several interviewees highlighted that the CSAE Directive facilitated cross-border cooperation for the taking down of CSAM, which might not have happened otherwise.

Is the intervention still relevant?

Relevance

Interviewees widely agreed that the CSAE Directive is not fully relevant. Definitions therein should be updated to account for current but also forthcoming technologies. For example, artificial intelligence (AI) and self-generated contents were raised as emerging areas that are not addressed but should be. Several interviewees explicitly mentioned the importance of livestreaming, noting that the CSAE Directive fails to account for livestreamed content and instead focuses too heavily on pre-recorded content. Two interviewees raised that, in fact, a significant amount of illicit activities (e.g. livestreaming sexual abuse, distribution of CSAM content, grooming of children for sexual purposes) occurs through licit platforms such as TikTok and Facebook.

Finally, the majority of interviewees held that the CSAE Directive does not go far enough in addressing the specific needs of different groups of children (e.g. non-binary and LGBTQ children, children in migration, children with disabilities).

Problem evolution

Regarding emerging technological developments, interviewees were concerned by developments in AI, augmented reality (e.g. the metaverse) and gaming. Interviewees also raised concerns over the proliferation of existing technology, both in terms of the increasing use of technology as well as children accessing technology at an ever-younger age. The lack of parental/caregiver filtering between children and content/interactions facilitated by technology presents new opportunities for offenders to target their victims. Two interviewees also specified the increasing threat posed by organised criminal groups, as the trade of CSAM represents a growing market for criminal organisations to profit. One interviewee posited that offenders are already drawing from organised criminal groups and adopting some of their tactics, for the sake of profiting off of their own activities they would conduct anyway. The other interviewee foresaw existing organised crime groups entering into the market themselves for the sake of profit.

Need for EU action

Opportunities for both legislative and non-legislative EU action were raised during the targeted interviews. As concerns legislative action, interviewees raised the possibility for the EU to adopt new EU rules on online dimensions of CSAE to strengthen internet safety for children. Four interviews raised the point that the terminology of the CSAE Directive should be revised to ensure that definitions therein are up-do-date. For instance, the term ‘child pornography’ should be replaced with ‘child sexual abuse material’. Also, one interview highlighted the need to include in the CSAE Directive specific provisions on data collection requirements for the Member States.

4.5 Virtual study visits to selected Member States

In order to finalise the assessment of the Directive and preliminarily assess the consequences of the identified policy options, the Study Team implemented virtual study visits in four selected Member States. The study visits represented the trait d’union between the evaluation and the impact assessment, with a twofold objective. From a retroactive perspective, they aimed at testing the conclusions and recommendations stemming from the evaluation of the Directive as well as confirming the relevance of the identified problems and at fine-tuning the understanding of possible good practices identified within specific national contexts. From a forward-looking perspective, the virtual study visits aimed at preliminarily testing different identified policy options and solutions and at obtaining preliminary inputs on their impacts and costs, or savings linked to the adoption of new measures.

5. Consultation planning

5.1 Consultations focused on the impacts of identified policy options

5.1.1 Online questionnaire focused on costs

Once the policy options are defined together with a preliminary identification of their respective impacts, the Study Team will launch a second online questionnaire focused only on the expected costs stemming from the option implementation. The questionnaires will be addressed to the same stakeholders selected for the virtual study visits. The questionnaire is aimed at gathering information on the possible impacts over time, which might be challenging to retrieve based on the desktop research. This questionnaire will focus on both one-off and recurrent investments as well as on different types of costs, including e.g., the time needed to perform the different activities required by the measure, the number of FTEs involved in the implementation of such activities and related average salary. From an operational perspective, the questionnaire will be launched following the same approach already described for the online survey above (see Activity 3.2). However, the feedback period for this questionnaire will only be open for 1-2 weeks. In order to gather the highest number of responses possible, the Study Team will propose stakeholders who have difficulties in replying to the questionnaire to fill it in during an interview with the Study Team.

5.1.2 Case study Interviews

In addition to the online questionnaire, the Study Team will undertake case study interviews with the same national stakeholders who received the questionnaires focused on costs. These interviews have a twofold purpose: (i) to minimise possible data gaps in case the response rate of the online questionnaire is low and (ii) to collect in-depth information and data from selected Member States on the nature and extent of the impacts in light of the specific national policy and regulatory framework relevant to the fight against CSAE. Qualitative and quantitative data (including quantifiable costs/benefits) collected through the case study interviews will allow the Study Team to develop a better understanding of the concrete and practical consequences of each option, and thus to develop an impact assessment that will be more sensitive to national differences/specificities. In each selected Member State, the Study Team will perform up to five interviews with relevant national stakeholders concerned by the policy alternatives under assessment (as for the virtual study visits, these will likely include national competent authorities, national law enforcement authorities, judicial authorities, CSOs/hotlines). The interviews will last maximum 1.5 hour and will be performed either by phone or through online platforms (e.g. Microsoft Teams).

Annex 3: Who is affected and how?

1. Practical implications of the initiative

The revision of the Child Sexual Abuse Directive primarily affects the following actors/groups of persons: victims and their relatives, governments, the judicial system and victim support services.

For all preferred options, namely options A, B, and C as well as for the horizontal measures/instruments, the overall practical implications will be assessed for each actor/group of persons.

Victims and their relatives (and society as a whole)

·The legislative definitions related to the criminalisation of pornography depicting children, the criminalisation of offences committed in virtual reality, the criminalisation of physical reproductions of CSA, the criminalisation of sexual chatting with children under the age of consent, the creation of live-streaming as a stand-alone offence would reduce the incidence of the crime.

·Measures which improve efficiency in fighting child sexual abuse will most certainly produce positive social impacts, such as an increase in security and trust in authorities and interpersonal relations, as well as a lesser need for self-protecting measures, especially considering that sexual abuse and exploitation of children causes deep and long-lasting physical, psychological and social damage for the victim and people close to him or her.

·Reduce the harm suffered by victims.

·Ensure a higher level of safety of citizens against crime and fight impunity of criminals, as provisions would be encoded in law.

·Encompass positive measures for society, through measures entailing focusing both on the prevention and the assistance to victims’ side, to identify clear benchmarks to assess the effectiveness of programmes.

·A more efficient system to fight and prevent crime deters more criminals and their rehabilitation would lead to fewer offences.

·Strengthen the protection of other fundamental rights enshrined in the EU Charter, including the right to human dignity (Article 1), the right to the integrity of the person (Article 3), the prohibition of inhuman or degrading treatment or punishment (Article 4), and the rights of the child (Article 24).

National authorities (including judicial and law enforcement authorities)

·Enhance the capacity of national authorities, as well as cooperation with the private sector in order to better prevent and fight against child sexual abuse.

·Improve the functioning of prevention mechanisms within the Member States and ensure better national coordination among assistance and support services. It would enhance the capacity of stakeholders likely to come into contact with victims of child sexual abuse, to identify victims at an early stage and refer them to adequate services.

·Compile and keep a new statistical database on child sexual abuse related-offences among the total number of police reports, investigations and court cases is a measure with a strong potential in terms of impact on society.

·Formalise mandatory cross-border disqualifications for sex offenders.

·Introduce stricter requirements to address issues related to professionals, judges and educators dealing with child abuse cases.

·Improve the capacity of law enforcement and judicial authorities to deprive any criminals from exploiting child sexual abuse for financial purposes, and to prevent child sexual exploitation from infiltrating the legal economy.

·Reduce costs, which are incurred by the crime for the society, in terms of coordination of investigations, prevention, specialised services, as well as law enforcement, health services and social protection.

·Stricter measures, e.g. to increase the level of penalties for certain crimes such as possession of child sexual abuse material or to criminalise as many forms of exploitation as possible, or to increase the efficiency of cross-border investigations to safeguard fundamental rights.

·Formalise the data collection on child sexual abuse and exploitation at the national level to collect data every year on the indicators specified in the Directive, as a minimum.

European Commission

·Support Member States, and monitor the transposition and implementation of the revised provisions of the Child Sexual Abuse Directive, in addition to continuing the monitoring of the implementation of the provisions, which remain unchanged.

·Organise meetings with the internet companies, in cooperation with the Member States and EU Agencies, within the EU Internet Forum.

2. Summary of costs and benefits

The costs associated with the preferred option are presented in the Table below.

No costs are identified for citizens/consumers and businesses since the costs associated with the policy measures directly impact administrations at the national level.

(1) Estimates (gross values) to be provided with respect to the baseline; (2) costs are provided for each identifiable action/obligation of the preferred option otherwise for all retained options when no preferred option is specified; (3) If relevant and available, please present information on costs according to the standard typology of costs (adjustment costs, administrative costs, regulatory charges, enforcement costs, indirect costs;). (4) Administrative costs for offsetting as explained in Tool #58 and #59 of the ‘better regulation’ toolbox. The total adjustment costs should equal the sum of the adjustment costs presented in the upper part of the table (whenever they are quantifiable and/or can be monetised). Measures taken with a view to compensate adjustment costs to the greatest extent possible are presented in the section of the impact assessment report presenting the preferred option.

3. Relevant sustainable development goals

Annex 4: Analytical methods

0.0.Evaluation questions

In accordance with the Terms of Reference drawn up by the European Commission, RAND Europe in collaboration with Ernst & Young (EY) conducted a study to support the evaluation of the Directive on combating the sexual abuse and sexual exploitation of children and child pornography and an impact assessment of the possible options for its amendment. (request for service No 28 - HOME/2020/ISFP/FW/EVA2/0068).

Its content has been structured following the requests of the Terms of Reference (ToR) and considering our technical proposal. The report is structured in the following chapters:

·Introduction, presenting the study objectives and scope (Chapter 1);

·Overview of the status of the project, describing the activities implemented so far and providing for a preliminary assessment of the data collection process (Chapter 2);

·Preliminary results of the analysis of CSAE in the EU: scale and scope of CSAE, the key feature of the phenomenon and its statistical magnitude (Chapter 3);

·The relevant policy context to the fight against CSAE at the EU and international level (Chapter 4);

·A detailed overview of the objectives of Directive 2011/93/EU, as well as its implementation state of play across Member States (Chapter 5)

·Evaluation results in relation to the evaluation questions (EQ) under each of the five evaluation criteria: effectiveness, efficiency, relevance, coherence, and EU added value (Chapter 0);

·Conclusions of the evaluation analysis, including some points of further discussion emerging from the analysis of the evaluation criteria (Chapter 7).

The methodological approach derived from a careful analysis of the 39 evaluation questions presented below and the production of evaluation grids separated by each of the five evaluation criteria as they are stipulated by the Better Regulation Guidelines (effectiveness, efficiency, relevance, coherence and EU Added Value). Building on the evaluation questions, the evaluation grids included:

·Judgment criteria: statements that need to be confirmed or disconfirmed by the analysis.

·Analytical approach: the type of analysis used to answer the evaluation question. The proposed analysis informed the type of information collected.

·Indicators: quantitative and qualitative measures supporting the analysis and informing the judgement criteria.

·Data sources: quantitative and qualitative sources of indicator variables used in the analysis.

The evaluation grids have been treated as a ‘live’ document throughout the research process. This means they have undergone revisions throughout the early research process to ensure that the questions were phrased in a manner that supports the aims of the evaluation in best way possible.

In this report, the evaluation criteria are addressed according to the order of the Better Regulation Guidelines. The evaluation should look at the effectiveness, efficiency, relevance and coherence of the actions undertaken on the basis of the Directive, as well as the achieved EU added value of these actions. Where appropriate, each evaluation point must be applied to the key areas covered by the Directive i.e. prevention, investigation and prosecution of offences, and assistance to and protection of victims. The methodology on research under point 6.1 should be read together with the following indicative list of questions, which the Contractor should address in the analysis. The list of questions is non-exhaustive and should be discussed between the Contractor and Commission services, and further supplemented by the Contractor as needed.

Evaluation questions

Effectiveness

   General:

1.A number of provisions of the Directive still remain to be fully implemented by the EU Member States (in particular with regard to prevention). What are the issues that have contributed to incomplete implementation?