​Rapporteur's Version of Article 13 Will Still Kill Free Speech on the Internet September 07, 2018 • LibertiesEU by Eva Simon Liberties read the amendments tabled for the EU Copyright Directive. The amendment that seems to enjoy most well support from by MEPs is also the one that presents the greatest threat to our fundamental rights.

After analyzing the proposed amendments, we have a better sense of how certain groups of MEPs would like to amend the infamous Article 13, the previous version of which would have obliged internet companies to install upload filters.

Of the amendments we have seen, the amendment proposed by JURI Committee Rapporteur Axel Voss is by far the most threatening to our rights. On 31 August, he tweeted the following:

The new proposal for #copyrightdirective does not forsee any measures/„upload filter“ .... Now I expect everyone who was against the previous proposal because of this to support the new proposal.

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But is it really true?

The version MEP Voss tabled is moored to the same presumptions as the previous one, namely that users and internet companies want to infringe copyright deliberately and make money from the creativity of others. MEP Voss’s answer this time is to reshape the liability regime of internet platforms. His version expressly states that content sharing service providers, such as Facebook, YouTube, GitHub or Wikipedia, have full liability for content that is uploaded by users.

This newly suggested version of Article 13 is in substance the same as the original, even if the wording is slightly different. As in his previously proposed version, this new proposal will leave internet companies with no other option but to install upload filters. The difference this time is that they will do so “voluntarily”.

Under Voss’s latest proposal, internet companies will be liable for content uploaded by their users. To avoid liability they will have to remove anything that might infringe copyright. Their only other option would be to take individual decisions on every single piece of content uploaded to their platforms and hire tens of thousands of lawyers specialised in copyright law. But we know these companies will not be hiring masses of legal experts, because that would far more expensive than their other option: automated filtering mechanisms. These filtering mechanisms will be heavy-handed, erring on the side of caution for the company to minimise the risk of liability. They will block anything that could possibly violate copyright to remove any prospect of the company being held liable for the publication of copyrighted material.

At first sight, there are only two parts of the Voss proposal that deserve praise. One is the end of subparagraph 2b of Article 13. This says that cooperation between companies and rightholders should not lead to any identification of individual users, nor to the processing of their personal data. Even though the intention here is very good, it remains a question how this could be accomplished by internet service providers, since usernames and IP addresses are personal data. And there would still be situations where they would have to identify their users, especially if there is a redress mechanism that ensures that unjustified removal is corrected.

The other part that deserves some acknowledgment is the obligation on EU member states to give users access to an independent body or court for dispute resolution. However, the proposal would only oblige governments to make the redress mechanism available to argue that their upload should be allowed because it falls within an exception or limitation to copyright rules. These bodies don't need to deal with other legal issues, like whether blocking an upload amounted to a disproportionate limitation on free speech.

All in all, changing the liability regime creates an internet where the only solution is more filtering. We have been asking MEPs to avoid upload filters and create safeguards to protect human rights. MEP Voss’s version represents a clear threat to our online free speech and privacy.

Liberties has been arguing that safeguards have to be included in the text in order to properly protect fundamental rights.

We asked MEPs to change their presumptions about users and the internet. Most users do not want to violate copyright. They share videos, pictures and memes for entertainment. The new regulation should be written with this in mind, rather than the assumption that users want to steal intellectual property.

The internet should not be considered an infinite public sphere. Home videos are uploaded to be viewed by family or small groups of friends, even though in theory these videos could reach billions of people. This means liability for content should be conditional to its reach.

The other important safeguard we need in order to protect free speech and ensure the possibility to participate in public debates is to spell out exceptions to copyright infringement. Parody and memes are examples of legitimate free speech that might incidentally use copyrighted material. The EU can come up with a non-exhaustive list of exceptions that are mandatory in the member states.

We asked MEPs to add safeguards to Article 13 to prevent causeless removal of user-generated content. If copyright holders and platforms are held liable for deleting lawful user-generated content, it would change their attitude and free speech would be more effectively protected. This liability should be in line with the Directive on electronic commerce ( 2000/31/EC ) liability régime.

Transparency guarantees are also needed. Internet platforms should not make decisions to block or remove content without transparency or accountability. The EU should provide a free legal mechanism to settle disputes between users, copyright holders and internet platforms.

The Voss proposal gives us none of these guarantees.

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