Opinion | Why a Potential new EU Copyright law Might Impede Free Speech Online

From elections to dating, the internet is increasingly shaping our lives. In the effort to control copyright abuse, however, the European Commission is going too far

Europe’s laws on how internet companies should deal with illegal content online are among the best in the world. They require companies to act quickly when informed of illegal content and also prevent member states from imposing a “general obligation to monitor” all online communications. This strong legal framework has been a guiding star worldwide for fundamental rights online.

Then came the newly proposed Copyright directive. This is a draft proposal launched by the European Commission in September 2016 and awaiting approval by the European Parliament and the member states. The proposal comes in the context of what the Commission calls its “better regulation” agenda. Instead, however, it is a Trump era “post-truth” challenge to free speech and citizens’ rights, to the health of the EU’s online economy and Europe’s leading role in the world for defending freedom of expression online.

Let’s take a closer look: Without changing the underlying statute governing illegal content, the directive would reinterpret existing law to address the unauthorized use of copyrighted materials through a series of formal explanatory notes. Thus, copyright infringements would now be subject to the existing rules and the new ones simultaneously. Overlapping and often contradictory, the result is a hodgepodge that would make application difficult and undermine the existing legal framework for the role and responsibilities of internet companies.

Planned incongruence

On the face of it, this sounds incompetent. It is not. The motivation behind this planned chaos can be found in the explanatory memorandum of the directive: to ensure “a balanced bargaining position between all actors”.

Internet companies are increasingly faced with demands for blocking, filtering and surveillance, as well as for the payment of license fees for material uploaded by their users, of which they have no knowledge. Under the new directive, they would have to deal with these demands in a legal environment that offers no clarity, no guarantee that a court would not shut them down or hold them liable for the actions of their users.

The result is a case study in bad drafting and legal uncertainty that is entirely deliberate – a consciously “worse regulation agenda” from the European Commission that has committed itself to the opposite. In the past, the European Court of Justice has declared such broad restrictions illegal, but a 2014 ruling on an Austrian case opened the door for a policy shift. Due to a peculiarity of Austrian law, non-specific obligations imposed by injunction were deemed permissible. The European Commission thus felt empowered to propose a similarly vaguely worded version which, however, was contradicted by a second European Court of Justice ruling this July, insisting that the law must be specific about how restrictions on fundamental rights will be imposed.

It gets worse, however, when we turn to the directive’s famous article 13. Here, the European Commission, which has a legal duty to be the “guardian” of EU treaties, goes completely o the rails. The proposal is that internet companies “take measures” such as “the use of effective content recognition technologies” to “prevent the availability” of protected content identified by recognition technologies – sweeping up legal uses for education, quotation, etc. This means, without saying so precisely, that internet companies should filter all content that is being uploaded to the internet. Why is the European Commission being so coy? Because the European Court of Justice has ruled – twice – that such filtering may not be imposed by law.

Propriety is in the eye of the Beholder

The European Commission’s proposal demands that measures taken be “appropriate and proportionate,” presumably to avoid explicitly mandating the kinds of filtering that were twice rejected by the Court (although Commission Vice-President Andrus Ansip told the European Parliament that the new obligations could be respected by using available filtering software). But this also gives the Commission an escape clause: It can claim that any filtering or blocking was the choice of the companies themselves.

So can the European Commission propose restrictions on the public’s free expression and use of the internet, to avoid its own legal obligations? Possibly not. As recently as July of this year, the European Court of Justice emphasized that laws restricting fundamental rights must be clear about exactly how those rights should be restricted. However, if it gets adopted, the directive – precisely because it is so vague – will be very hard to challenge in court. A similarly unlawful EU directive forcing telecom companies to retain data for law enforcement purposes was in place for six years before the Court annulled it.

Important decisions will be made by the EU institutions in the coming weeks. You can share your views with the European Parliament on savethememe.net.

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Joe McNamee
Is executive director of European Digital Rights initiative (EDRi), a Brussels-based association of European civil and human rights organizations, dedicated to defending rights and freedoms in the digital environment. He is not related to publisher Dardis McNamee.

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