By Diego Naranjo

On 16 October 2017, Politico leaked the response from the Legal Services of the Council of the European Union (CLS) to the questions raised by six member states about the legality of the upload filter proposal in the Article 13 of the Copyright Directive proposal. As the censorship filter is about restricting fundamental rights, it is regrettable that the questions did not mention the rules under which restrictions can be imposed, namely Article 52.1 of the Charter of Fundamental Rights of the European Union. This means that key issues were not addressed in the CLS response.

In anticipation of being leaked, the document is carefully written to say nothing clearly, speculating instead about future interpretations, and ending with a “to be continued” clause, because, as the CLS correctly points out, the “confusing terms in which that [explanatory] recital is drafted raise various legitimate questions to which, regrettably, no answers are given…”

Censorship filters: Not in my name… or maybe yes

Paragraph 12 of the document repeats the views of the Court of Justice of the European Union (CJEU) regarding the upload filters proposed in the Sabam/Netlog and Telekabel cases (in both cases the Court ruled against filtering) by saying that the measures to be put in place to prevent copyright infringements should be “the most affordable and effective ones among those available, taking into account elements such as ‘the resources and abilities available’ to them, the specificities and the needs of their services, as well as their size”.

The document correctly states that content recognition technology (i.e. upload filtering) is not explicitly imposed in Article 13. This is because the article is designed to coerce the companies into imposing the measure, rather than explicitly mandating that they do so. As a result, they can choose “through cooperation with the right holders, the most appropriate and proportionate measure to achieve the objective pursued”. Is that “provided for by law” as required by the Article 52.1, “necessary” or “genuinely achieve objectives of general interest” as required by the Charter of Fundamental Rights”? The answer isn’t given because the question wasn’t asked. Are the rules for restricting fundamental rights “clear and precise” as the Court has repeatedly insisted that they must be? It is impossible to read previous rulings of the CJEU and come to the conclusion that Article 13 achieves minimum standards of predictability.

If you’re censored, please contact the company customer services

Moving away from the basic principle of law that fundamental rights are the law and exceptions must be clearly provided for, the CLS builds on the notion of corporate rights. The rights of the internet companies are not restricted, because they will be wise enough to buy, and able to afford,the level of filter that the courts will deem appropriate. Can we realistically assume that such appropriate, affordable, necessary, proportionate, non-intrusive, accurate, up-to-date, multiple (text, image, video, audio…) filters exist?

The CLS states that there is no breach of freedom of expression in case that the company takes down legal content by failures of the system, since you can always contact the relevant online platform. As long as the provider does not take the cheap and easy option of saying the upload was a terms of service violation, as long as they don’t answer too slowly, as long as the file identifiers they were given were correct, as long as the usage was not a legal exception to copyright in one country but not in another, the CLS may have a point.

How this is going to work in practice for thousands of uploads taking place every minute of every day, and with many examples already known of these technologies failing, is a mystery. Will users get used to the idea of getting their blogposts, memes, videos or audios potentially censored by a company? Will this need to be taken to a court once the redress mechanism fails? Legal services have no response to that.

Data protection risks? No… but maybe yes!

Later on, when analysing the concerns raised regarding the right to data protection being affected by upload filters, the CLS replies “no”. The logic is simple: restrictions of freedom of expression do not breach of your freedom of expression, because you can complain (if the company does not take the easy option of claiming a terms of service violation). Similarly this activity is not a breach of your data protection rights, if no personal data is processed. What is not explained is how you can complain to a company about them filtering out your uploads, if the company that you are complaining to has processed no personal data and therefore does not know that it has filtered out your uploads.

Unsurprisingly, the document concludes that “in view of any technological developments, the envisaged proposed measures may lead to an interference with the right to personal data protection, further guarantees will need to be foreseen”.

Legal confusion regarding the e-Commerce Directive

When analysing whether the Copyright Directive impacts the e-Commerce Directive (contrary to the assertions of the European Commission), the CLS admits that the Commission’s proposal text for the Directive gives no clear answer. The CLS says that “the confusing terms in which that recital is drafted raise various legitimate questions to which, regrettably, no clear answers are given”. The CLS seems comfortable with the notion that it is proportionate and legally possible to impose one (harsher) interpretation for copyright, through the Copyright Directive, while leaving a less harsh regime in place for terrorism and child abuse. It may well be legally possible for one set of words (the e-Commerce Directive) to end up with two different meanings. It may well be legally possible to interpret those words in a way that treats the upload of a meme to YouTube as worse than uploading a beheading video. It may well be.

This document ends with two conclusions: First, the CLS replies to the Member States that asked about the upload filter proposals that the measures in the Article 13 are not necessarily disproportionate (but they might be and nobody actually knows what they will be). Secondly, it states and that there is no legal certainty regarding recital 38 of the Copyright Directive and its impact on the e-Commerce Directive.

Leak: Council legal service supports more clarity on proposed copyright reform (16.10.2017)
http://www.politico.eu/wp-content/uploads/2017/10/copyright-document.pdf

Six states raise concerns about legality of Copyright Directive (05.09.2017)
https://edri.org/six-states-raise-concerns-about-legality-of-copyright-directive/

Leaked document: Questions from Member States to the Council legal services on the Censorship Machine (05.09.2017)
http://statewatch.org/news/2017/sep/eu-copyright-ms-questions.htm

EU countries question legality & attack on fundamental rights
http://copybuzz.com/analysis/eu-countries-question-legality-attack-fundamental-rights/

Proposed Copyright Directive – Commissioner confirms it is illegal (28.06.2017)
https://edri.org/proposed-copyright-directive-commissioner-confirms-it-is-illegal/

(Contribution by Diego Naranjo and Joe McNamee, EDRi)

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