Rights Groups to European Commission: Prioritize Users’ Rights, Get Public Input For Article 17 Application Guidelines

The implementation of Art 17 (formerly Article 13) into national laws will have a profound effect on what users can say and share online. The controversial rule, part of the EU’s copyright directive approved last year, turns tech companies and online services operators into copyright police. Platforms are liable for any uploaded content on their sites that infringes someone’s copyright, absent authorization from rightsholders. To escape liability, online service operators have to make best efforts to ensure that infringing content is not available on their platforms, which in practice is likely to require scanning and filtering of billions of daily social media posts and content uploads containing copyrighted material.

The content moderation practices of Internet platforms are already faulty and opaque. Layering copyright enforcement onto this already broken system will censor even more speech. It’s paramount that preserving and protecting users’ rights are baked into guidelines the EC is developing for how member states should implement the controversial rule. The guidelines are non-binding but politically influential.

The commission has held four meetings with stakeholders in recent months to gather information about copyright licensing and content moderation practices. Two more meetings are scheduled for this spring, after which the EC is expected to begin drafting guidelines for the application of Article 17, which must be implemented in national laws by June 7, 2021.

The fifth meeting was held today in Brussels. The good news is EFF and other digital rights organizations have a seat at the table, alongside rightsholders from the music and film industries and representatives of big tech companies like Google and Facebook. The bad news is that the commission’s proposed guidelines probably won’t keep users’ rights to free speech and freedom of expression from being trampled as internet service providers, fearful of liability, race to over-block content.

That’s why EFF and more than 40 user advocate and digital rights groups sent an open letter to the EC asking the commissioners to ensure that implementation guidelines focus on user rights, specifically free speech, and limit the use of automated filtering, which is notoriously inaccurate. The guidelines must ensure that protecting legitimate, fair uses of copyrighted material for research, criticism, review, or parody takes precedence over content blocking measures Internet service providers employ to comply with Article 17, the letter says. What’s more, the guidelines must make clear that automated filtering technologies can only be used if content-sharing providers can show that users aren’t being negatively affected.

Further, we asked the commission to share the draft guidelines with rights organizations and the public, and allow both to comment on and suggest improvements to ensure that they comply with European Union civil and human rights requirements. As we told the EC in the letter, “This request is based on the requirement of transparency, which is a core principle of the rule of law.” EFF and its partners want to “ensure that the guidelines are in line with the right to freedom of expression and information and also data protection guaranteed by the Charter of Fundamental Rights.”

The EC is scheduled to hold the next stakeholder meeting in February in preparation for drafting guidelines. We will keep the pressure on to protect users from censorship and content blocking brought on by this incredibly dangerous directive.