By Glyn Moody
As readers of Techdirt will remember, one of the biggest defeats for users of the Internet — and for online freedom of expression — was the passage of the EU Copyright Directive last year. The law was passed using a fundamentally dishonest argument that it did not require upload filters, because they weren’t explicitly mentioned in the text. As a result, supporters of the legislation claimed, platforms would be free to use other technologies that did not threaten freedom of speech in the way that automated upload filters would do. However, as soon as the law was passed, countries like France said that the only way to implement Article 17 (originally Article 13) was through upload filters, and copyright companies started pushing for legal memes to be blocked because they now admitted that upload filters were “practically unworkable”.
This dishonesty may come back to bite supporters of the law. Techdirt reported last August that Poland submitted a formal request for upload filters to be removed from the final text. The EU’s top court, the Court of Justice of the European Union (CJEU) has just held a public hearing on this case, and as the detailed report by Paul Keller makes abundantly clear, there are lots of reason to be hopeful that Article 17’s upload filters are in trouble from a legal point of view.
The hearing was structured around four questions. Principally, the CJEU wanted to know whether Article 17 meant that upload filters were mandatory. This is a crucial question because the court has found in the past that a general obligation to monitor all user uploads for illegal activities violates the fundamental rights of Internet users and platform operators. This is why proponents of the law insisted that upload filters were not mandatory, but simply one technology that could be applied. In her commentary on the public hearing, the former Pirate Party MEP Julia Reda summarizes Poland’s answer to the CJEU’s question as follows:
Poland argued that while Article 17 does not explicitly prescribe the use of upload filters, no alternatives are available to platforms to fulfil their obligations under Article 17(4). In a similar vein, [CJEU] Advocate General Saugmandsgaard Øe asked Parliament and Council whether a person who is required to travel from Luxembourg to Brussels within two hours can really be considered to have a choice between driving and walking. Poland also correctly pointed out that the alternatives presented by the European institutions, such as fingerprinting, hashing, watermarking, Artificial Intelligence or keyword search, all constitute alternative methods of filtering, but not alternatives to filtering.
This is the point that every expert has been making for years: there are no viable alternatives to upload filters, which means that Article 17 necessarily imposes a general monitoring requirement, something that is not permitted under current EU law. The fact that the Advocate General Øe, who will release his own recommendations on the case early next year, made his comment about the lack of any practical alternative to upload filters is highly significant. During the hearing, representatives of the French and Spanish governments claimed that this doesn’t matter, for the following remarkable reason:
The right to intellectual property should be prioritized over freedom of expression in cases of uncertainty over the legality of user uploads, because the economic damage to copyright-holders from leaving infringements online even for a short period of time would outweigh the damage to freedom of expression of users whose legal uploads may get blocked.
The argument here seems to be that as soon as even a single illegal copy is placed online, it will be copied rapidly and spread around the Internet. But this line of reasoning undermines itself. If placing a single illegal copy online for even a short time really is enough for it to be shared widely, then it only requires a copy to be placed on a site outside the EU’s reach for copies to spread around the entire Internet anyway — because copying is so easy — which makes the speed of the takedown within the EU irrelevant. As Reda emphasizes, the balance of different competing rights is going to be central to the CJEU’s considerations, and it is not just freedom of expression that Article 17 threatens:
Aside from the intellectual property of rightsholders and the freedom of expression and information of users, other fundamental rights need to be taken into account, most notably the freedom to conduct a business of platform operators. Article 17 leaves few guarantees for the freedom to conduct a business, by introducing extremely broad obligations on platform operators, while only limiting those obligations through a general reference to the principle of proportionality.
That is, it’s not just online users who will suffer because of the unavoidable use of upload filters, businesses will too. And there’s another, more subtle issue, that the CJEU will consider, which is whether the EU lawmakers have done a good enough job in terms of establishing the necessary minimum safeguards against the the violation of fundamental rights by upload filters:
While the proponents of Article 17 considered that the safeguards included in it are sufficient, such as the complaint and redress mechanism and the obligation to leave legitimate uses unaffected, Poland argued that the EU legislator had deliberately passed on these difficult questions to the national legislators and ultimately the platforms, in an effort to sidestep politically sensitive issues.
The other trick used by supporters of the Copyright Directive to get it approved — leaving to national governments and individual companies the impossible task of reconciling upload filters with freedom of expression — may also count against Article 17 when the CJEU rules on whether it is valid. Moreover:
The case before the Court has far-reaching implications beyond the realm of copyright law, as similar sector-specific legislation is being considered in other areas, and the European Commission is in the process of drafting horizontal legislation on content moderation.
In other words, what seemed at the time like a desperate last attempt by Poland to stop the awful upload filters, with little hope of succeeding, now looks to have a decent chance because of the important general issues it raises — something explored at greater length in a new study written by Reda and others (pdf). That’s not to say that Article 17’s upload filters are dead, but it seems like the underhand methods used to force this legislation through could turn out to be their downfall.
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