The EU lawyers write that the draft regulation “would require the general and indiscriminate screening of the data processed by a specific service provider, and apply without distinction to all the persons using that specific service, without those persons being, even indirectly, in a situation liable to give rise to criminal prosecution”. The legal service of the council of the EU, the decision-making body led by national ministers, has advised the proposed regulation poses a “particularly serious limitation to the rights to privacy and personal data” and that there is a “serious risk” of it falling foul of a judicial review on multiple grounds. Now leaked internal EU legal advice, which was presented to diplomats from the bloc’s member states on 27 April and has been seen by the Guardian, raises significant doubts about the lawfulness of the regulation unveiled by the European Commission in May last year.

Privacy campaigners and the service providers have already warned that the proposed EU regulation and a similar online safety bill in the UK risk end-to-end encryption services such as WhatsApp disappearing from Europe. The providers issued with a so-called “detection order” by national bodies would have to alert police if they found evidence of suspected harmful content being shared or the grooming of children.

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