Control Freaks

Article 13: Monitoring and filtering of internet content is unacceptable. Index on Censorship joined with 56 other NGOs to call for the deletion of Article 13 from the proposal on the Digital Single Market, which includes obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens' fundamental rights.

Dear President Juncker,
Dear President Tajani,
Dear President Tusk,
Dear Prime Minister Ratas,
Dear Prime Minister Borissov,
Dear Ministers,
Dear MEP Voss, MEP Boni

The undersigned stakeholders represent fundamental rights organisations.

Fundamental rights, justice and the rule of law are intrinsically linked and constitute core values on which the EU is founded. Any attempt to disregard these values undermines the mutual trust between member states required for the EU to function. Any such attempt would also undermine the commitments made by the European Union and national governments to their citizens.

Article 13 of the proposal on Copyright in the Digital Single Market include obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens' fundamental rights.

Article 13 introduces new obligations on internet service providers that share and store user-generated content, such as video or photo-sharing platforms or even creative writing websites, including obligations to filter uploads to their services. Article 13 appears to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens' communications if they are to have any chance of staying in business.

Article 13 contradicts existing rules and the case law of the Court of Justice. The Directive of Electronic Commerce ( 2000/31/EC) regulates the liability for those internet companies that host content on behalf of their users. According to the existing rules, there is an obligation to remove any content that breaches copyright rules, once this has been notified to the provider.

Article 13 would force these companies to actively monitor their users' content, which contradicts the 'no general obligation to monitor' rules in the Electronic Commerce Directive. The requirement to install a system for filtering electronic communications has twice been rejected by the Court of Justice, in the cases Scarlet Extended ( C 70/10) and Netlog/Sabam (C 360/10). Therefore, a legislative provision that requires internet companies to install a filtering system would almost certainly be rejected by the Court of Justice because it would contravene the requirement that a fair balance be struck between the right to intellectual property on the one hand, and the freedom to conduct business and the right to freedom of expression, such as to receive or impart information, on the other.

In particular, the requirement to filter content in this way would violate the freedom of expression set out in Article 11 of the Charter of Fundamental Rights. If internet companies are required to apply filtering mechanisms in order to avoid possible liability, they will. This will lead to excessive filtering and deletion of content and limit the freedom to impart information on the one hand, and the freedom to receive information on the other.

If EU legislation conflicts with the Charter of Fundamental Rights, national constitutional courts are likely to be tempted to disapply it and we can expect such a rule to be annulled by the Court of Justice. This is what happened with the Data Retention Directive (2006/24/EC), when EU legislators ignored compatibility problems with the Charter of Fundamental Rights. In 2014, the Court of Justice declared the Data Retention Directive invalid because it violated the Charter.

Taking into consideration these arguments, we ask the relevant policy-makers to delete Article 13.

European Digital Rights (EDRi)
Access Info
ActiveWatch
Article 19
Associação D3 -- Defesa dos Direitos Digitais
Associação Nacional para o Software Livre (ANSOL)
Association for Progressive Communications (APC)
Association for Technology and Internet (ApTI)
Association of the Defence of Human Rights in Romania (APADOR)
Associazione Antigone
Bangladesh NGOs Network for Radio and Communication (BNNRC)
Bits of Freedom (BoF)
BlueLink Foundation
Bulgarian Helsinki Committee
Center for Democracy & Technology (CDT)
Centre for Peace Studies
Centrum Cyfrowe
Coalizione Italiana Liberta@ e Diritti Civili (CILD)
Code for Croatia
COMMUNIA
Culture Action Europe
Electronic Frontier Foundation (EFF)
epicenter.works
Estonian Human Rights Centre
Freedom of the Press Foundation
Frënn vun der Ënn
Helsinki Foundation for Human Rights
Hermes Center for Transparency and Digital Human Rights
Human Rights Monitoring Institute
Human Rights Watch
Human Rights Without Frontiers
Hungarian Civil Liberties Union
Index on Censorship
International Partnership for Human Rights (IPHR)
International Service for Human Rights (ISHR)
Internautas
JUMEN
Justice & Peace
La Quadrature du Net
Media Development Centre
Miklos Haraszti (Former OSCE Media Representative)
Modern Poland Foundation
Netherlands Helsinki Committee
One World Platform
Open Observatory of Network Interference (OONI)
Open Rights Group (ORG)
OpenMedia
Panoptykon
Plataforma en Defensa de la Libertad de Información (PDLI)
Reporters without Borders (RSF)
Rights International Spain
South East Europe Media Organisation (SEEMO)
South East European Network for Professionalization of Media (SEENPM)
Statewatch
The Right to Know Coalition of Nova Scotia (RTKNS)
Xnet

At EFF, we see endless attempts to misuse copyright law in order to silence content that a person dislikes. Copyright law is sadly less protective of speech than other speech regulations like defamation, so plaintiffs are motivated to find ways to turn many kinds of disputes into issues of copyright law. Yesterday, a federal appeals court rejected one such ploy: an attempt to use copyright to get rid of a negative review.

The website Ripoff Report hosts criticism of a variety of professionals and companies, who doubtless would prefer that those critiques not exist. In order to protect platforms for speech like Ripoff Report, federal law sets a very high bar for private litigants to collect damages or obtain censorship orders against them. The gaping exception to this protection is intellectual property claims, including copyright, for which a lesser protection applies.

One aggrieved professional named Goren (and his company) went to court to get a negative review taken down from Ripoff Report. If Goren had relied on a defamation claim alone, the strong protection of CDA 230 would protect Ripoff Report. But Goren sought to circumvent that protection by getting a court order seizing ownership of the copyright from its author for himself, then suing Ripoff Report's owner for copyright infringement. We filed a brief explaining several reasons why his claims should fail, and urging the court to prevent the use of copyright as a pretense for suppressing speech.

Fortunately, the Court of Appeals for the First Circuit agreed that Ripoff Report is not liable. It ruled on a narrow basis, pointing out that the person who originally posted the review on Ripoff Report gave the site's owners irrevocable permission to host that content. Therefore, continuing to host it could not be an infringement, even if Goren did own the copyright.

Goren paid the price for his improper assertion of copyright here: the appeals court upheld an award of over $100,000 in attorneys' fees. The award of fees in a case like this is important both because it deters improper assertion of copyright, and because it helps compensate defendants who choose to litigate rather than settling for nuisance value simply to avoid the expense of defending their rights.

We're glad the First Circuit acted to limit the ways that private entities can censor speech online.

If you've been following the slow progress of the European Commission's proposal to introduce new upload filtering mandates for Internet platforms , or its equally misguided plans to impose a new link tax on those who publish snippets from news stories, you should know that the end game is close at hand. The LIBE (Civil Liberties) Committee is the last committee of the European Parliament that is due to vote on its opinion on the so-called "Digital Single Market" proposals this Thursday October 5, before the proposals return to their home committee of the Parliament (the JURI or Legal Affairs Committee) for the preparation of a final draft.

The Confused Thinking Behind the Upload Filtering Mandate

The Commission's rationale for the upload filtering mandate seems to be that in order to address unwelcome behavior online (in this case, copyright infringement), you have to not only make that behavior illegal, but you also have to make it impossible . The same rationale also underpins other similar notice and stay-down schemes, such as one that already exists in Italy ; they are meant to stop would-be copyright infringement in its tracks by preventing presumptively-infringing material from being uploaded to begin with, thereby preventing it from being downloaded by anyone else.

But this kind of prior restraint on speech or behavior isn't commonly applied to citizens in any other area of their lives. You car isn't speed-limited so that it's impossible for you to exceed the speed limit. Neither does your telephone contain a bugging device that makes it impossible for you to slander your neighbor. Why is copyright treated so differently, that it requires not only that actual infringements be dealt with (Europe's existing DMCA-like notice and takedown system already provides for this), but that predicted future infringements also be prevented?

More importantly, what about the rights of those whose uploaded content is flagged as being copyright-infringing, when it really isn't? The European Commission's own research, in a commissioned report that they attempted to bury , suggests that the harm to copyright holders from copyright infringement is much less than has been often assumed. At the very least, this has to give us pause before adopting new extreme copyright enforcement measures that will impact users' human rights.

Even leaving aside the human impact of the upload filter, European policymakers should also be concerned about the impact of the mandate on small businesses and startups. A market-leading tool required to implement upload filtering just for audio files would cost a medium-sized file hosting company between $10,000 to $25,000 per month in license fees alone. In the name of copyright enforcement, European policymakers would give a market advantage to entrenched large companies at the expense of smaller local companies and startups.

The Link Tax Proposal is Also Confused

The link tax proposal is also based on a false premise. But if you are expecting some kind of doctrinally sound legal argument for why a new link-tax ought to inhere in news publishers, you will be sorely disappointed. Purely and simply, the proposal is founded on the premise that because news organizations are struggling to maintain their revenues in the post-millennial digital media space, and because Internet platforms are doing comparatively better, it is politically expedient that the latter industry be made to subsidize the former. There's nothing more coherent behind this proposal than that kind of base realpolitik.

But the proposal doesn't even work on that level. In fact, we agree that news publishers are struggling. We just don't think that taxing those who publish snippets of news articles will do anything to help them. Indeed, the fact that small news publishers have rejected the link tax proposal , and that previous implementations of the link tax in Spain and Germany were dismal failures , tells you all that you need to know about whether taxing links would really be good for journalism.

So as these two misguided and harmful proposals make their way through the LIBE committee this week, it's time to call an end to this nonsense. Digital rights group OpenMedia has launched a click-to-call tool that you can use, available in English , French , German , Spanish , and Polish . If you're a European citizen, the tool will call your representative on the LIBE committee, and if you don't have an MEP, it calls the committee chair, Claude Moraes. As the counter clicks closer to midnight on these regressive and cynical copyright measures, it's more important than ever for individual users like you to be heard.

Update: Delayed

11th October 2017. From OpenMedia

With only 48 hours notice we received word that the vote had been delayed. Why? The content censorship measures have become so controversial that MEPs decided that they needed more work to improve them, before they would be ready to go vote.

There's never been a better time to call your MEP about these rules. This week they are back in their offices and ready to start thinking with a fresh head. The delay means we have even more time to say no to content censorship, and no to the Link Tax. With so many people speaking up, it's clear our opponents are rattled. Now we must keep up the pressure.

Call your MEP now