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.Continue reading