Today, Statewatch published a leaked Council document: a quite thorough ‘non-paper’ tabled by a series of Member States (Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands). The document focuses on Article 13 and its accompanying Recitals (38 and 39) of the Directive on Copyright in the Digital Single Market, which aims to mandate that online platforms put in place an automated censorship filter (see our video) to block potential copyright-infringing material.

More specifically, the document raises a set of questions addressed at the legal services of the Council which basically indicate that:

the Member States involved question the legality of the proposed measure and its compatibility with European fundamental rights, especially the rights to freedom of expression, information, the protection of personal data, and to conduct a business. the Member States confirm that the proposed measure changes the interpretation of the E-commerce Directive (ECD) when it relates to intermediary liability (so-called ‘safe harbor’) and directly attacks the ECD’s prohibition against general monitoring obligations , contrary to the European Commission’s claims. the Member States believe that the Commission’s proposal redefines key principles of copyright, such as what constitutes a ‘communication to the public’, and does this in an unclear and possibly inappropriate manner. the Member States basically do not believe the Commission‘s narrative so far and call its bluff by asking a legal opinion.

Interestingly, this set of fundamental questions regarding the (il)legality of the proposal was tabled by these Member States before the summer recess, and has been blatantly disregarded by the Estonian Presidency, which issued last week its proposals for compromise language, including on Article 13. Clearly, the Estonians seem to think they can just plough ahead, and that a fundamental issue such as legality can be shrugged off, hence joining the European Commission in the camp of the ‘political trumps legal’ approach. After all, they could very much have considered that getting an answer from their legal services on these fundamental questions was maybe the appropriate thing to do? Surely EU citizens’ fundamental human rights cannot be seen as a mere technicality?

1. The Directive on Copyright in the Digital Single Market jeopardizes EU citizens’ fundamental rights

The document confirms the word on the street: the Commission is willing to push through legislation that raises close to unanimous reactions by academics as regards its potential incompatibility with existing law (including the fundamental rights set out in the Charter by the same name), and some Member States seem unprepared to support that approach.

This illustrates an increasingly worrying trend: in the past, the dull eurocrats of the European Commission could be trusted to produce one thing, namely a legislative text that ticked the boxes when it came to it being, well, legal. If this assurance is now weakened up to the point that the Council needs to have it checked, what exactly does the Commission bring to the table?

This trend is made even worse by the fact that the legal services of the European Commission, when examining the draft proposal prior to its adoption by the College of Commissioners, shared several misgivings with the services, misgivings which were blatantly ignored by the latter. We can sadly not share these misgivings, as they are not public, even after several organisations tried to obtain them through multiple freedom of information requests.

2. The proposal contradicts the E-commerce Directive and imposes a censorship filter that applies BEFORE the upload of content

It’s what the text clearly states but somehow, many policy makers have been combating a brain freeze when interpreting rather easy to understand words such as ‘prevent the availability’, helped in their limbo by reassurances from the European Commission.

As a result, many of them (as evidenced by this tweet from MEP Helga Truepel) keep on claiming that the filter required by Article 13 does not kick in before the upload, hence seeming to think this whole exercise is just a variant of notice & action. And by the way, Truepel’s tweet is just an illustration of a misconception that many of her colleagues seem to have regarding this measure, a misconception fed by the Commission.

The Council Member States clearly beg to differ on that one when stating: ‘The prior identification and filtering before the stage of upload of content on the publically available platform would occur automatically when the identification technology finds a match with a work or protected subject-matter’. It’s hard to not make it more ‘ex ante’ (prior to the posting) than that.

Why is this important? Because it means that the freedom of expression of citizens is threatened much more forcefully than in the case of a notice and action procedure, where you at least get the opportunity to exercise your freedom, before an opposing voice tries to curtail it. Here, the system does not include such a debate in views: automated systems stiffle your voice before it was ever audible.

The ‘not ex ante’ misconception waved by the European Commission is in the same line as when they state that ‘when you filter everything but just to pick out a specific thing, you are not imposing a general monitoring obligation’. There again it is clear that some Member States’ experts are not buying into that narrative and ask for legal accuracy to come into play.

The Estonian Presidency took the nuclear approach to this concern by explicitly brushing aside Article 14 of the E-commerce Directive (ECD) in its proposed alternatives of Article 13….and staying silent on any conflicts with Article 15 of the ECD which prohibits general monitoring obligations online. In other words, for the Estonians, regardless of legality, the options on the table are ‘Online platform thou shall be responsible for uploaded content and thou shall look at each of your users as a potential copyright infringer, blocking at the request of the rightholders’.

3. The Council Member States point out that a major threat lies in a Recital and (rightfully) wonder if that really is how things should be done

Recital 38 is the covert bomb slipped in by the European Commission in an already explosive text. It is ‘armed and extremely dangerous’ at various levels, something these Member States clearly spotted:

It is a horizontal provision that applies beyond copyright

It gives an inaccurate reading of case law from the Court of Justice of the European Union (CJEU), by highlighting some criteria adopted by the court to assess the liability of intermediary, whilst (purposefully) forgetting some of the requirements (such as actual knowledge).

Despite claiming that it does not change existing law, that is exactly what it does (see EDRi’s analysis), by fundamentally affecting a key concept in copyright, namely what constitutes a ‘communication to the public’.

It must be noted that this seems to be one of the few elements the Estonian Presidency took into consideration in its proposed ‘compromise’ on Article 13, as it mixed all these bad elements from the Recitals, worsened them and dumped them in its proposed ‘option B’ drafting for Article 13. In other words: all gloves are off on the redrafting of other legislations through this proposal.

4. Clearly, part of the Council has trouble believing the European Commission

When looking at the questions raised in the non-paper, one cannot but think that the answers to all these questions should have been part of the Impact Assessment conducted by the European Commission prior to the drafting of the Copyright in the Digital Single Market proposal. The reality is however that the impact assessment is nothing but an ‘exercice de style’ and that none of these fundamental questions are part of its analysis.

The questions also indicate that the Member States clearly believe the European Commission is not truthful in its answers and wants to call the Commission’s bluff when it keeps pretending that the language on the table in Article 13 of the proposal and its Recitals does not impede on European Union fundamental rights.

Conclusion

None of the questions raised in this document are to be dismissed. It is hence crucial that any further discussion on Article 13 be delayed until proper written responses are obtained based solely on legal considerations, rather than on political aspirations and industrial policy concerns. Fundamental rights of EU citizens should not be subject to trade offs!

What others are saying