European Commission ignores civil society concerns and sides with creative industries

Today is a sad day for Europe. Instead of listening to reason and arguments, the European Commission itself brought up in front of the CJEU, the backroom political influence of the entertainment industry has won once again. Clearly “earmarking” content means preferring the economic interests of a few powerful actors over the fundamental rights of a whole generation.

Today the European Commission has published guidelines for the implementation of the Copyright Directive which undermines users’ protections. Upload filters (aka CensorshipMachines) operated and designed by multinational companies will get to decide what content can be shared online and what can’t, with lower fundamental rights safeguards than the ones foreseen in the previous draft of the guidelines.

“After millions of people have signed petitions, hundreds of thousands protested on the streets and hundreds of others called politicians warning against legalising automated censorship machines, the European Commission has still decided to side with large multinationals endangering people’s right to freedom of expression. This sets a dangerous precedent for future European legislation and for other governments around the world that would get inspired by legalised censorship in Europe.”

Diego Naranjo, Head of Policy at EDRi.

Civil society resistance to the imposition of automated upload filters in the EU Copyright Directive has previously mobilised millions of Europeans, as well as UN Special Rapporteurs, academics and creators. At its core, upload filters give large companies from the music industry and Big Tech the power to decide what stays online, what doesn’t, and how people can seek redress in these scenarios.

After the adoption of the Copyright Directive in 2019, the European Commission held a series of stakeholder dialogues between industry and civil society to prepare guidelines for the Member States on how Article 17 should be implemented. These guidelines, published today, empower multinationals with powers to judge over the legality of all online free speech in Europe, ignoring rule of law safeguards and the advice from a long list of critics. Furthermore, this creates a precedent for the discussion regarding content moderation in the Digital Service Act (DSA).

“The European Commission has abandoned the position previously held that in order for Article 17 to comply with fundamental rights, only manifestly infringing content can be blocked. Instead, the guidance allows rightsholders to “earmark” content to have it blocked without regard for legal uses such as quotations or parodies. This element of the guidance undermines people’s right to freedom of expression and will lead to mass blocking of legal content.”

Julia Reda, Copyright Expert and Project Lead at EDRi member GFF

“Today is a sad day for Europe. Instead of listening to reason and arguments, the European Commission itself brought up in front of the CJEU, the backroom political influence of the entertainment industry has won once again. Clearly “earmarking” content means preferring the economic interests of a few powerful actors over the fundamental rights of a whole generation. This is not just dangerous for freedom of expression and creativity online, it’s also existential for democracy and Europeans’ support to EU institutions.“

Thomas Lohninger, Executive Director at EDRi member epicenter.works

“Having participated in the stakeholder dialogue, which was a lengthy and transparent process, we have the impression that the results of this process were sacrificed in the final months leading up to the launch of these guidelines, behind closed doors and due to pressure from the entertainment industry.” 

Diego Naranjo, Head of Policy at EDRi

EDRi calls upon the Commission to withdraw this flawed guidance until the ruling of the Court of Justice of the European Union on whether Article 17 is compatible with the Charter of Fundamental Rights.