Civil society groups have placed a lot of hope in the European Commission to limit the dangers to fundamental rights caused by upload filters through the Commission’s Article 17 guidance, which is supposed to help member states implement Article 17 of the DSM directive in a fundamental rights-preserving manner. But with less than two months to go before the implementation deadline, the guidance is still nowhere to be seen. In an open letter published today, twenty user rights organisations are therefore calling on the Commission not to undermine elements of the guidance that would protect users’ fundamental rights by limiting the use of automated upload filters to manifestly infringing content.
Late last week, the CJEU unexpectedly postponed the Advocate General opinion in the Polish case challenging the fundamental rights compliance of Article 17 of the DSM directive by almost three months. Knowing that the upcoming Commission guidance was discussed extensively at the CJEU hearing on the Polish case in November, the postponement could very well mean that the Advocate General wants to see the document before issuing an opinion.
While the Commission has been hinting at the imminent release of the guidance for a few months now, the timing indicates that the Commission precisely wanted to avoid giving the Advocate General time to study the guidance. This does not bode well for the fundamental rights safeguards the Commission is planning to present. Signals are mounting that the delays are the result of intense behind-the-scenes political wrangling aimed at undermining the user rights safeguards to be included in the guidance.
That’s why, together with 20 other users’ rights organisations who have participated in the EU stakeholder dialogue on the implementation of Article 17, we have sent an open letter to the Commission, raising our concerns about the handling of the final phase of this process. The letter urges the Commission “not to weaken its guidance through open ended exception clauses that seem to benefit particular rightsholders at the expense of users’ fundamental rights” and stresses that “strong ex-ante fundamental rights protections are necessary to meet the obligation of result to protect users’ fundamental rights.”
The letter further highlights the fact that, by issuing guidance that substantially diverges from the position taken before the CJEU, the Commission would indicate that it is ultimately lacking the political will to ensure that the required fundamental rights protections will be included in national implementations of the directive.
How did we get here?
The Commission has been working on drafting its guidance since the conclusion of the stakeholder dialogue meetings in February of last year. In July the Commission published a first draft of its guidance as part of a targeted consultation. In its draft, the Commission made it clear that, in order to protect fundamental rights of users and in order to comply with the provisions of the directive, national implementations of Article 17 must contain ex-ante user rights safeguards, that limit the automated blocking of uploads to situations where an upload is clearly (“manifestly”) infringing.
The draft guidance showed that the Commission was willing to live up to its role as the steward of the complicated legislative compromise embodied in Article 17. While the approach received massive criticism from rightsholders and some Member States, in November the Commission doubled down on this approach in its intervention in the Polish CJEU case challenging the fundamental rights compliance of Article 17. Together with the Council and the Parliament the Commission argued that Article 17 respects fundamental rights because Member States must implement it in a way that ensures that uploads that are not manifestly infringing cannot be automatically blocked. The Commission wanted the CJEU to believe that the upcoming guidance would be based on this principle.
Almost half a year later the guidance is still nowhere to be seen. Yesterday Commissioner Thierry Breton informed members of the CULT committee of the European Parliament that the guidance would be presented “within the next weeks”, but refused to answer a direct question from MEP Marcel Kolaja (from 14:27:55 onwards) if the guidance would “defend the legal interpretation that the Commission held before the CJEU, according to which only manifestly infringing content may be blocked?”.
This refusal to answer this question must be placed in the context of the larger developments. Over the past few months the final version of the guidance has been the object of intense, behind the scenes, political wrangling between different parts of the Commission. In February, MEPs critical of the principles expressed in the draft guidance held a closed door meeting with Commission representatives and select Member States opposing the Commission’s position. In the following week a high ranking member of the Cabinet of Executive Vice President Magrete Vestager – who oversees this file – received a delegation of rightholder organisations who have been rallying against the principles underpinning the Commission’s draft guidance to discuss the Copyright Directive.
Calling the Commission’s bluff
In light of these efforts to undermine key elements of the guidance, the mounting delays of the publication give reason to believe that the final guidance will significantly water down the safeguards for users’ fundamental rights in order to please particularly powerful rightsholder groups. If this were to be the case it would significantly undermine the credibility of the Commission, which throughout all of last year had run the stakeholder dialogue in a transparent manner in line with its role as the steward of the legislative compromise embodied in Article 17.
More importantly, such a weakened version of the guidance would also undermine the Commission’s credibility with the CJEU, who ultimately needs to decide on the fundamental rights compliance of Article 17. Having argued that the upcoming guidance would signal a strong commitment to protecting users’ fundamental rights, any weakening of this position by the Commission would give the Court additional reasons to annul Article 17 (as requested by the Republic of Poland).
If one assumes that it was the Commission’s intention to issue its guidance only after the opinion of the Advocate General, then the Advocate General has called the Commission’s bluff: By delaying his opinion to July the Advocate General is forcing the Commission to show its hand before issuing his opinion. In this situation the Commission would do well to stick to the principles underpinning its draft guidance and create legal clarity as soon as possible.