Hot on the heels of last week’s leak of a (rather depressing) Estonian council compromise proposal that contained two bad proposals for the upload filter comes another leak of a council document. Apparently not all EU Member States are convinced that the Commission’s plans to require online platforms to filter all user uploads is such a good idea! Statewatch has just published a document containing written questions from the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands to the council legal service regarding article 13 and recital 38.
These questions clearly show that these Member States have serious doubts about the Commission’s repeated assurances that the proposed censorship filters would not affect users’ fundamental rights, do not change the liability exemption of the e-commerce directive, do not constitute a general monitoring obligation and do not change the definition of what it means to make copyrighted works available online.
All of these questions may sound like technical details but they are not. Instead they are at the heart of the discussion about article 13 of the commission’s proposal. Since the commission presented the proposal, a broad coalition of civil society, technology companies and academics has pointed out the problematic relationship between the commission’s proposal and fundamental rights and the principles established by the e-commerce directive.
Member States have serious doubts about legality of upload filters
The music industry organisations are the driving force behind the attempt to censor user uploads and regain control over the ability of millions of online creators to express themselves online. Together with the Commission they have flat out denied that the proposed in article 13 and recital 38 would change existing EU law. The fact that the six member states have formally asked the legal service of the Council (which is independent of the Commission) shows that they are not buying into this narrative.
This is quite remarkable, not only because it shows a fairly uncommon level of mistrust towards the Commission’s statements, but also in the context of last week’s proposes for compromises. The Estonian compromise proposal presented 2 different versions for a possible compromise on article 13 and neither of them takes into account the serious concerns that the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands have. When at least six member states are still in the process of understanding how the measures proposed by the Commission relate to important cornerstones of the existing EU law, the willingness of the Estonian presidency to move ahead and propose compromise language is rather troubling from a procedural point of view.
Is the Commission undermining the legal basis for the Digital Single Market?
Now the fact that these questions have been asked, does not mean that the legal service of the Council will confirm that indiscriminate filtering of user uploads would be violating existing EU laws that protect consumers and provide the legal basis for Europe’s online economy ( In order to find out what the legal services think we would likely have to wait for some time (the leaked document with the questions dates from end of July). If previous statements by leading academics are any indication, however, it is quite likely that the reaction will expose incompatibilities between the Commission’s proposal and existing laws.
While we are waiting for the answers from the Council’s legal service (which will hopefully be leaked as well, since the Council generally operates behind closed doors) It is illustrative to take a close look at the question posed by the six Member states. While dry and bureaucratic, the leaked document actually does a remarkable job summarizing the complex legal issues at hand.
Does the filtering of user uploads violate the fundamental rights of EU citizens?
The document starts up with a brief summary of the overall position that the European Commission has taken when discussing the proposed article 13 with the Member states:
Article 13 of the Commission proposal for a directive on copyright in the Digital Single Market imposes an obligation on certain platforms to proactively prevent the uploading on their platform by users of content that contains part of protected works or subject matter which right holders wish to block. This can only be achieved through the use of identification and filtering technology.
[…] the Commission states that it will uphold the existing principles of the e-Commerce Directive and will maintain a balanced and predictable liability regime for online platforms since this is crucial for the further development of the digital economy in the EU and for unlocking investments in platform ecosystems. During the discussion of the proposal, the Commission stated that the obligation under Article 13 should be considered as a standalone measure and that the current proposal, including recital 38, does not alter the provisions of Directive 2000/31/EC, nor does it provide a new interpretation of Article 3 of Directive 2001/29/EC (communication to the public).
It then focuses on the question of the relation between the proposal with exceptions and the Charter of Fundamental Rights of the EU. The document outlines the broad scope of the Commission’s proposal:
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. This process would apply across a wide variety of online services and platforms used by European citizens to upload content to the internet.
In practice this would happen irrespective of the fact that the user can benefit from an exception to copyright. According to the proposal, users would be given a possibility to file complaints in the context of a redress mechanism set-up by the platform, however […] the proposal does not provide for appropriate measures that would enable these users to actually benefit from public interest copyright exceptions. It is important to point out that certain exceptions to copyright, such as e.g. parody or the quotation right are the embodiment in copyright of fundamental rights other than the right to property.
Based on this the six member states to ask the following two questions:
Would the standalone measure/ obligation as currently proposed under Article 13 be compatible with the Charter of Human Rights […] in the light of the jurisprudence of the CJEU that aims to secure a fair balance in the application of competing fundamental rights? Are the proposed measures justified and proportionate?
Does article 13 undermine the legal basis for the EU online economy?
This leads to the second set of questions which looks into the relationship between the proposal with the liability exceptions for online platforms established by article 14 of the e-commerce directive. The member states point out that while the commission’s proposal pretends to summarize the current legal situation the text of recital 38 omits an important factor used in assessing if a service can rely on the liability exemption provided by the e-commerce directive, namely “the actual knowledge of the illegal activity on the platform.”
Actual knowledge is required by the CJEU. In case C-324/09 eBay vs L’Oréal the CJEU (case concerning trademarks) held that “… an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale”. Furthermore, under Recital 42 of the Directive on electronic commerce, the reference to “passive” activities is also clearly subject to determining whether a service has knowledge or control over information.
The member states further note that – contrary to statements made by the Commission that recital 38 is not intended to modify the provisions of the e-commerce directive – the recital “has a horizontal nature and is not limited to copyright.” This leads to the following set of questions:
Is it appropriate to modify the manner in which the Directive on electronic commerce is applied and interpreted in a horizontal manner, in a recital in a Directive on copyright?
Is the description in recital 38 of the current state of play of the jurisprudence of the CJEU regarding the eligibility of ISPs for liability exemptions under Directive 2000/31/EC accurate and complete?
In the event that the description in recital 38 would be incomplete or would create legal uncertainty, would it not be more preferable to replace part of recital 38 with a “without prejudice clause” in respect to the directive on electronic commerce, similar to the clause in recital 1six of directive 2001/29/EC?
The wording of the last question clearly shows that at least the six member states who submitted these questions want to prevent a modification of the rules of the e-commerce directive through the backdoor of the proposed DSM directive. This seems to be based on concerns that this flawed attempt to please the music industry in their campaign against open platforms has the potential to fundamentally alter the ground rules of the European online economy as a whole.
Upload filters: A general obligation to monitor users?
The next question deals with the prohibition of a general obligation to monitor users of online services contained in article 15 of the e-commerce directive. Currently there is no clear agreement if preventive upload filtering as required by article 13 would constitute such an obligation. The Commission, mainly relying on clever wordsmithing, claims it doesn’t while prominent academics argue that it does.
During the discussions in the Council working group, the European Commission stated that the standalone obligation under Article 13 (prior identification and filtering of unauthorized protected content by certain platforms) does not constitute a general obligation for platforms to monitor the information which they store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. Such a general obligation to monitor is prohibited under Article 15(1) of the Directive on electronic commerce. This leads the member states to ask the following question:
Is Article 15 of the Directive on electronic commerce to be understood that the prohibition for Member States to impose general monitoring obligations does not apply in the situation where Member States’ legislation would oblige certain platforms to apply technology that identifies and filters all the data of each of its users before the upload on the publically available services?
The last set of questions concerns the relationship with the communication to the public right that has been codified in the 2001 InfoSoc directive. The exact scope of this right has been under a lot of discussion by the courts over the past years, and the discussion is far from settled.
As pointed out by the six member states, recital 38 of the proposed directive contains language that could be interpreted to widen the concept of communication to the public. The result would be that additional types of activities of online platform operators and/or their users become dependent on prior permission from rightsholders:
The use of the notion “providing access to the public to copyright works” creates legal uncertainty. The European Commission has repeatedly stated that the aim of the proposal was not to modify the notion of communication to the public as provided under Article 3 of directive 2001/29/EC, but it does not wish to delete the words that give rise to legal uncertainty.
Is the Commission (not so) secretly trying to broaden the scope of copyright?
This leads to the final question submitted by the six member states:
Under the premise that it was not the intention of the Commission proposal to modify the notion of communication to the public, does the Legal Service consider it is sufficient to “provide access to the public” to a copyrighted work to constitute an act of communication to the public under Directive 2001/29, or does the CJEU require that further conditions be met to establish a communication to the public?
Taken together these question makes it clear that the commission’s proposal for an upload filter is highly problematic from a legal point of view. As we have pointed out before the whole article with corresponding recitals should be deleted from the proposal, not only for reasons of compliance with existing EU law but also because the concept was introduced in spite of a total lack of empirical evidence for the problem it is supposed to address (the imaginary “value gap”).
In this light the governments of Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands deserve a lot of praise for this attempt to re-introduce external legal expertise into the discussion about article 13.