EU Advocates Unable to Get Annulment Recommendation in Article 17

Article 17 has been a long running threat to free speech in Europe. The hope to get an annulment recommendation wound up being unsuccessful.

The long running battle over Article 17, formerly Article 13, has seen another development. The law is also known as the upload filter and the censorship machines which mandates sites implement copyright filters to automatically remove anything potentially copyright infringing. Digital rights advocates point out the enormous free speech implications that could have in Europe because adequate technology doesn’t exist. In response to the initial legislation, mass demonstrations were organized by numerous groups such as the European Pirate Party, Anonymous, EDRI, and countless other organizations. As a result, protesters flooded the city streets all banding together under the hashtag #SaveYourInternet. The protests had an effect as politicians began having second thoughts on the legislation.

Unfortunately, after copyright extremists began threatening politicians and voting procedures that circumventing the voting intentions of some politicians into inadvertently supporting the legislation, the legislation was passed anyway, overruling the will of Europeans who overwhelmingly denounced the legislation.

The legislation caused uncertainty in the world of innovation. In response, investors began heading for the exits thanks to this growing business uncertainty. Meanwhile, creators discovered that they won’t see any compensation under the law. Even developers of the filtering technology admit that no system can adequately handle the technological aspects as demanded by these laws.

Still, advocates and creators vowed to continue fighting the laws. They know full well what is at stake here. The law also underwent a name change to be known as Article 17 instead of Article 13. In March of last year, during the Article 17 consultations on implementing the directive, advocates pushed to have human review implemented in the law. The idea is that if content is flagged for takedown, a human is able to review it to make sure that the content is actually illegal in the first place.

Recently, new hope emerged when Poland called for the annulment of Article 17. The hope is that this might actually put an end to this free speech disaster. Unfortunately, the Advocate General has recommended against annulment of the law. From Euractive:

Article 17 was the subject of harsh criticism from campaign groups and NGOs, which argued online platforms would have an incentive to block even legal content when in doubt to avoid any legal dispute.

The Advocate General recognised the risk of ‘over-blocking’, especially in relation to automated tools, but considered the legal safeguards provided in the Directive were sufficient to minimise that risk.

However, the legal advice makes two important caveats.

First, the content sharing platforms need to respect the exemptions from copyright restrictions, which include quotation, criticism, review or parody of cultural products. These exemptions should be respected also in preventive blocking, not redressed following a user complaint.

Second, Saugmandsgaard Øe noted that private providers cannot become judges of the legitimacy of online content. Therefore, they should only limit the blocking to content that is manifestly illegal and abstain from preventive measures in ambiguous situations.

“In his opinion, the Advocate General has made it clear: When implementing Article 17, member states are obliged to limit the use of upload filters to manifestly illegal content. Commercial platforms must not take on the role of a court when it comes to evaluating the legality of user uploads,” said former EU lawmaker Julia Reda.

In these cases, it will be the responsibility of rightsholders to notify the platform or relevant authorities if they deem the content to be illegally uploaded.

Digital Rights advocates have expressed disappointment, but are still holding out hope that annulment can still happen. Julia Reda commented on Twitter about these developments:

Disappointing news: Advocate General of @EUCourtPress
does not recommend the annulation of #Article17. Instead, the provision must be interpreted in a fundamental rights-compliant manner to ensure that only manifestly illegal content gets blocked.

The opinion is not a judgment. If the Court follows the AG’s recommendation, #Article17 would survive, but it would apply differently than rightsholders hoped for. Member States will have to make sure that legal content is protected from #uploadfilters.

At least the hurdles for automatic blocking proposed by the Advocate General are high. Here’s the crucial part of the press release: #Article17 #uploadfilters We will know in a few months if the Court follows this interpretation.

According to the Advocate General, no transformative uses of copyrighted content may be blocked by #uploadfilters. If the Court agrees, not even the German implementation of #Article17 with its quantitative thresholds for “minor uses” meets the requirements of the Charter.

A similar view was also held by EDRI Human Rights lawyer, Diego Naranjo:

Very disappointing reading today’s Advocate General opinion on Art. 17 of the copyright Directive. However. the AG recognises the inherent risks of over-blocking lawful content, especially by using automated tools, which could make difficult to use them in practice #copyright

So, it sounds like, at minimum, Article 17 is going to get watered down compared to when it was first introduced as Article 13 back in 2019. Before, the idea was that a piece of software would be judge, jury, and executioner of content. Now, where this law is headed, is that the content has to be a 1 to 1 copy of infringing material in order for the laws to say that it has to be flagged. This, at the very least, would narrow the scope of the law quite a bit and, at the very least, move the law into a more positive direction. So, for example, if you are posting a snippet of a song, then offering commentary or analysis, then the system shouldn’t be triggered to take down your content. This is because the work in question is transformative.

Obviously, the ideal situation is to get the law annulled altogether. This would eliminate the remaining uncertainty surrounding the censorship machines. Still, it looks as though digital rights advocates are, at the very least, making inroads on this which is good news. As said repeatedly, though, this is not a final decision, but rather, the recommendation of a top advocate. So, it’s technically possible that the final decision can look very different from the advocates recommendation. So, now, we wait to see what the final decision is going to be. No doubt, European rights advocates are watching closely to see where this debate heads next.

Drew Wilson on Twitter: @icecube85 and Facebook.

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