Six European countries have publicly questioned whether a proposed new law that would require automatic upload filtering is actually legal.
Article 13 of the controversial European Union (EU) copyright reform, which has been lumbering on for years, includes a rule to force any website that allows users to upload content to implement filtering mechanisms to detect if it is copyrighted.
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Digital rights activists and academics have argued that this would lead to widespread censorship, hamper legal and legitimate expression online, and effectively put bots and algorithms in charge of creativity on the web. It would apply to any online platform that allows users to upload comments, pictures and videos.
Now ministers from Ireland, Belgium, the Czech Republic, Finland, Hungary, and the Netherlands have taken note. They have specifically asked the European Council’s legal services department whether the plans are in line with the European Charter of Fundamental Rights, which guarantees freedom of expression, protection of personal data and prohibits blanket surveillance.
Civil rights campaign group Statewatch leaked the EU Council document on its website on 5 September 2017.
One of the key questions is whether mandatory, automated upload filtering constitutes general monitoring – something that is banned by another EU law, the eCommerce Directive.
Another problem highlighted by the questions to the legal services is whether automated filtering software would be able to distinguish allowable public interest copyright exceptions such as parody or quotation.
Fears of automated censorship
Although the European Commission claims Article 13 of its draft law is compliant with existing legislation and European fundamental rights, the timing of the leak is significant as it comes ahead of key votes in the European Parliament on the issue later this month.
Pirate Party member of European Parliament (MEP) Julia Reda, in Germany, said the proposal would create “censorship machines” that violate fundamental rights.
“But the Estonian presidency [currently in charge of negotiating the law] didn’t care: They launched their proposals without waiting for the legal service to answer the questions – and without adequately addressing most of the specific concerns put forward,” said Reda.
“Legal uses of copyrighted content will be subject to automatic takedowns by filters. Only after the fact will a user be able to complain and get a chance at having their perfectly legal content reinstated.”
There is a clause (Recital 39c) that says any measures employed by internet platforms to comply with the new law must respect freedom of expression and information, however Reda believes these assurances fall flat. “The recital goes on to posit that in order to achieve this, it’s sufficient for the filters to come with a redress mechanism under which users can complain about wrongful deletions,” she added.
The plan also includes a carve out for websites that do not “optimise” uploaded content. But Reda said “any service that so much as offers a search function, an alphabetical sorting of uploaded files, or any user interface whatsoever” would not be given the opt out from upload filtering.
Digital rights activists urge halt on negotiations
The Computer and Communications Industry Association (CCIA) called on the Estonian presidency and the European Council to halt negotiations on the law “until a thorough legal analysis, focusing on its compatibility with European fundamental rights, has been conducted”.
“A number of European governments have clearly indicated that they question the compatibility of the copyright proposal with European fundamental rights and with the eCommerce Directive, the legal cornerstone of the European digital economy,” said CCIA public policy senior manager, Maud Sacquet.
“CCIA urges the European institutions to focus on a thorough written analysis of compatibility before starting their negotiations again,” she added.
OpenMedia, a digital rights organisation, said Article 13 “is in direct conflict with existing EU legislation and creates an unworkable legal framework”. The group has set up a tool to encourage citizens to directly lobby their MEP on the matter.
“Article 13 should be removed entirely from the proposed copyright package. If this legislation is allowed to go forward, its impact will be felt by every internet user in Europe, not to mention European innovators, whose growth will be made impossibly difficult by such an ambiguous legal regime,” said Ruth Coustick-Deal, OpenMedia digital rights specialist.
“Article 13 ensures that the only companies able to comply are established online media giants – achieving the opposite aim of the Digital Single Market Strategy,” she added.
The Council Legal Services are expected to provide full answers at the meeting of the Council’s Intellectual Property Working Party later in September.