‘Upload Filters’ Don’t Violate Freedom of Expression, Advocate General Finds

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EU Advocate General Saugmandsgaard Øe has published his advice on Poland's request to annul Article 17 of the Copyright Directive. The AG argues that the 'upload filter' doesn't significantly harm freedom of expression, but notes that safeguards are needed to prevent over-blocking.

eu flagIn 2019 the European Parliament adopted the new Copyright Directive that aims to modernize how copyright is protected in the online environment.

After the directive passed, individual EU member states began working on implementing the text into local law.

This includes the controversial Article 17, which requires online services to license content from copyright holders. If that is not possible, these companies should ensure that infringing content is taken down and not re-uploaded to their services.

Many opponents fear that this language will effectively lead to broad ‘upload filters’ that will take down more content than needed. This worry has been reiterated by several experts over the years.

Polish Opposition

After massive protests failed to stop the legislation, Poland was the last beacon of hope for the opposition. The country petitioned the EU Court of Justice to annul Article 17, as it would violate the freedom of expression of European citizens. Yesterday, this hope was quashed.

In a lengthy opinion, Advocate General Saugmandsgaard Øe dismissed the action brought by the Republic of Poland. According to the AG, the European Commission already made it clear that Article 17 should only be used to target manifestly infringing material.

“Article 17 of Directive 2019/790 contains sufficient safeguards to delimit the scope of the limitation on the exercise of the right to freedom of expression resulting from the contested provisions,” the AG writes.

Ambigious Uploads Shouldn’t be Blocked

The text of Article 17 clarifies that online services can only block content that’s “identical” and “equivalent” to files that have been flagged by copyright holders. This doesn’t include media that only uses a short piece of copyrighted content in a broader context.

Saugmandsgaard Øe stresses that in these “ambiguous” situations where fair use and other copyright exceptions could apply, online services shouldn’t block content preventively.

“In all ambiguous situations – short extracts from works included in longer content, ‘transformative’ works, and so forth – in which, in particular, the application of exceptions and limitations to copyright is reasonably conceivable, the content concerned cannot be the subject of a preventive blocking measure,” he writes.

False Positives a Bigger Problem than False Negatives

The EU Parliament, the Council, and the Commission stressed that for online services it’s more important to prevent legitimate content from being blocked than to stop potential copyright infringements at any cost. This should properly protect people’s freedom of expression.

“In other words, the legislature considered that ‘false positives’, consisting of blocking legal content, were more serious than ‘false negatives’, which would mean letting some illegal content through,” Saugmandsgaard Øe writes.

While this sounds clear, there are still several open questions. There is no clear definition of when something is clearly infringing, and when it’s not.

The AG acknowledges this in his opinion but doesn’t provide any clear answers. What is clear, however, is that individual member states must ensure that their Article 17 implementations include sufficient safeguards to prevent over-blocking.

Early Responses

Patrick Breyer, MEP for the Pirate Party, is a fierce opponent of Article 17. In response to the opinion, he notes that upload filters may still result in a lot of errors.

“While the Advocate General calls out the Member States’ responsibility to only target illegal content, the software won’t able to recognize which content is manifestly infringing and which is not, as it is undoubtedly error-prone,” Breyer argues.

In addition, several countries have already implemented Article 17 without all the mentioned safeguards, so these could still violate freedom of speech.

“Moreover, countries which implemented the copyright directive according to the Commission’s guidelines would now be, based on the Advocate General’s opinion, violating freedom of expression online,” Breyer writes.

That last point is shared by Communia which, in an initial response, notes that several EU member states will have to go back to the drawing board.

“Most (if not all) national implementations that we have seen so far clearly fail to meet this standard and if the CJEU follows the AG they will need to go back to the drawing board (or face legal challenges,” Communia wrote.

This commentary suggests that the Article 17 uncertainties are expected to last for a while, and the finer details may have to be fleshed out by the EU Court of Justice.

The Advocate General’s advice is not binding. However, in most cases, the recommendations are followed by the EU Court of Justice, which will likely issue its final verdict later this year.


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