Day 2 of Article 13 Passage: Website Uncertainty Begins to Set In

European’s continue to digest the news of Article 13’s passage. As analysis starts to trickle in, so does uncertainty for web innovation.

It’s now two days since European lawmakers did the unthinkable: pass open Internet killing laws. The move ultimately shocked the world that lawmakers would be so forceful in denying the will of the people and expert opinion. Unfortunately, here we are today wondering just how the continent can pick up the pieces.

Yesterday, European’s found themselves grieving the loss of Internet freedom. Using #RIPInternet, users expressed their sadness, anger, and a whole lot of other emotions over the development.

While we did hear about how the people reacted to the news, we haven’t really heard much from websites after the passage. One report we did find comes from Dot eSports which got reaction from Twitch. From the report:

“It’s extremely unclear, the legislation was drafted, in my opinion, quite poorly and it leaves a ton of questions opened,” Shear said. “It’s totally unclear what we have to do to comply or not.”

Due to the confusion over the new law, Shear said he sees the “next phase” involving member states writing their own rules for how they will comply with Article 13. Depending on what these interpretations of Article 13 might be, it may influence how Twitch navigates the legislation. If the rules surrounding Article 13 are specific, Shear said the law might have a lesser impact on Twitch.

“In theory, if all those rules were written well it might be OK because it is very vague so it gives you a lot of room,” he said. During the interview, Shear said Twitch will work to ensure the right rules are put in place involving Article 13. “We’re going to be lobbying to make sure that we think the right thing to happen is to go build legislation which is going to enable fair use and is going to enable people to experiment and try new things,” Shear said.

Indeed, as other analysis suggests, the law is now in the hands of member states for implementation. How the law is interpreted in different countries within the union could mean totally different things. If you are a website that caters to Europe, now you have to find ways of complying with a multitude of different countries. Not taking into account what’s happening with Britain, there are 28 countries in that block.

For web owners, that represent a huge challenge. How do you offer a service to users that complies with all those different countries legally? You might be able to cater to a few of these countries, but after all that work programming your site to comply with the laws of 2 or 3 countries, you only have the potential audience of those smaller countries – not the whole union.

To make matters worse, fresh analysis picked up by EDRi (European Digital Rights) suggests that the censorship laws could be incompatible with the GDPR (General Data Protection Regulation). From EDRi:

Article 13/17 requires content hosting providers to give their best efforts to prevent the upload or re-upload of copyright-protected works – which can only be achieved with upload filters – except if they are covered by specific copyright exceptions such as quotation, criticism or parody. For filters to function properly while taking into account those exceptions, they would need to recognise the context of the upload, that is to say information surrounding the content including personal data of the user uploading it. The question Engeler asks is under which legal basis of GDPR would platforms be able to process such personal data?

According to Engeler, platforms would be considered controllers in the sense of the GDPR because they decide which technologies they will use to monitor content. When analysing a film extract uploaded without authorisation, a filter would need to know whether it was used by a film critic – which would be legal according to the copyright exceptions listed in Article 13/17 – or by a user attempting to illegally distribute the film. Detecting such differences in the use of the same piece of content would depend on “meta information about the upload” such as the user identity, the place, and the date. This information would be considered personal data, and its analysis by the algorithm would be processing under GDPR.

The article goes on by examining the legal basis provided for in the GDPR (Article 6(1)), under which such processing would be allowed. Consent could not be freely given because all platforms would be required to have this processing in place, leaving no alternative to users. Making upload filters part of the terms and conditions would not respect the criteria of necessity of paragraph 1b, which allows the processing of personal data to execute a contract. Furthermore, the processing of personal data by content filters is neither necessary to protect the user’s vital interests, nor is it done for public or legitimate interests pursued by the platform – they don’t want an obligation to put filters in place. This leaves the platform with the legal basis whereby the processing is necessary for compliance with another legal obligation (para. 1c), which would be compliance with the copyright Directive.

However, considering the high risk of liability, smaller platforms will likely have to implement third party filters, bought as a service from bigger companies that have invested tens of millions of euros in such technologies. As a result, few big content filtering companies will be able to process the above-mentioned personal data of the vast majority of users. The new copyright Directive would thus lead to centralised filtering mechanisms.

So, legally speaking, there are also major questions being asked over how to practically follow the law while staying within compliance of other European laws. If you are already getting lost in all the details, think about how smaller web platform administrators are feeling right now being forced to navigate all of this legal uncertainty.

The only real good news in all of this is that the laws don’t take effect until 2021. So, that does buy time (or offer a drop dead date, depending on your interpretation on all of this). In either case, the difficulty for a website to survive in Europe is going to increase substantially. This doesn’t even take into consideration the three year exception or annual turnover exception found within the directive itself.

All this leaves a very important question for innovators: is Europe worth it? Is it worth all the headaches and expense and risk when other countries allow you to operate more freely? After all, even the US copyright laws don’t go this far. As the Twitch CEO said, it raises a lot more questions then answers.

Drew Wilson on Twitter: @icecube85 and Google+.



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