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Six European countries have publicly questioned whether a proposed new law that would require automatic upload filtering is actually legal.

Article 13 of the controversial European Union (EU) copyright reform, which has been lumbering on for years, includes a rule to force any website that allows users to upload content to implement filtering mechanisms to detect if it is copyrighted.

Digital rights activists and academics have argued that this would lead to widespread censorship, hamper legal and legitimate expression online, and effectively put bots and algorithms in charge of creativity on the web. It would apply to any online platform that allows users to upload comments, pictures and videos.

Now ministers from Ireland, Belgium, the Czech Republic, Finland, Hungary, and the Netherlands have taken note. They have specifically asked the European Council’s legal services department whether the plans are in line with the European Charter of Fundamental Rights, which guarantees freedom of expression, protection of personal data and prohibits blanket surveillance.

Civil rights campaign group Statewatch leaked the EU Council document on its website on 5 September 2017.

One of the key questions is whether mandatory, automated upload filtering constitutes general monitoring – something that is banned by another EU law, the eCommerce Directive.

Another problem highlighted by the questions to the legal services is whether automated filtering software would be able to distinguish allowable public interest copyright exceptions such as parody or quotation.

Fears of automated censorship Although the European Commission claims Article 13 of its draft law is compliant with existing legislation and European fundamental rights, the timing of the leak is significant as it comes ahead of key votes in the European Parliament on the issue later this month. Pirate Party member of European Parliament (MEP) Julia Reda, in Germany, said the proposal would create “censorship machines” that violate fundamental rights. “But the Estonian presidency [currently in charge of negotiating the law] didn’t care: They launched their proposals without waiting for the legal service to answer the questions – and without adequately addressing most of the specific concerns put forward,” said Reda. “Legal uses of copyrighted content will be subject to automatic takedowns by filters. Only after the fact will a user be able to complain and get a chance at having their perfectly legal content reinstated.” There is a clause (Recital 39c) that says any measures employed by internet platforms to comply with the new law must respect freedom of expression and information, however Reda believes these assurances fall flat. “The recital goes on to posit that in order to achieve this, it’s sufficient for the filters to come with a redress mechanism under which users can complain about wrongful deletions,” she added. The plan also includes a carve out for websites that do not “optimise” uploaded content. But Reda said “any service that so much as offers a search function, an alphabetical sorting of uploaded files, or any user interface whatsoever” would not be given the opt out from upload filtering.