The Advocate General (AG) of the EU Court of Justice today missed an opportunity to fully protect internet users from censorship by automated filtering, finding that the disastrous Article 17 of the EU Copyright Directive doesn’t run afoul of Europeans’ free expression rights.

The good news is that the
AG’s opinion, a non-binding recommendation for the EU Court of Justice, defends users against overblocking, warning social media platforms and other content hosts that they are not permitted to automatically block lawful speech. The opinion also rejects the idea that  content hosts should be “turned into judges of online legality, responsible for coming to decisions on complex copyright issues.”

On its face, Article 17 would allow online platforms to be held liable for unlawful user content unless they act as copyright cops and bend over backwards to ensure infringing content is not available on their platforms. EFF has repeatedly stressed that such liability regimes will lead to upload filters, which are prone to error, unaffordable for all but the largest companies, and undermine fundamental rights of users. Simply put, people will be unable to freely speak and share opinions, criticisms, photos, videos, or art if they are subjected to a black box programmed by algorithms to make potentially harmful automated takedown decisions.

Article 17 Interferes With Free Speech, But Not Quite Strong Enough

Today’s opinion, while milder than we had hoped, could help mitigate that risk. Briefly, the AG acknowledges that Article 17 interferes with users’ freedom of expression rights, as providers are required preventively to filter and block user content that unlawfully infringes copyrights. The AG found that users were not free to upload whatever content they wish—Article 17 had the “actual effect” of requiring platforms to filter their users’ content. However, the AG concludes that, thanks to safeguards contained in Article 17, the interference with free speech was not quite strong enough to be incompatible with the EU’s Charter of Fundamental Rights.

Here’s the slightly more detailed version: The EU Copyright Directive recognizes the right to legitimate uses of copyright-protected material, including the right to rely on exceptions and limitations for content such as reviews or parody. The AG opinion acknowledges that these protections are enforceable and stresses the importance of out of court redress mechanisms and effective judicial remedies for users. The AG points out that Article 17 grants users ex ante protection, protection at the moment they upload content, which would limit permissible filtering and blocking measures. Hence, in contrast to several EU Member States that have ignored the fundamental rights perspective altogether, the AG interprets Article 17 as requiring content hosts to pay strong attention to user rights’ safeguards and legitimate uses.

As the Republic of Poland submits, complex issues of copyright relating, inter alia, to the exact scope of the exceptions and limitations cannot be left to those providers. It is not for those providers to decide on the limits of online creativity, for example by examining themselves whether the content a user intends to upload meets the requirements of parody. Such delegation would give rise to an unacceptable risk of ‘over-blocking’. Those questions must be left to the court.        

Green Light to Filters, But Platforms Should Not Become The Copyright Police

The AG reaffirms the “ban of mandated general monitoring” of user content, which is an important principle under EU law, and rejects an interpretation of Article 17 in which providers are “turned into judges of online legality, responsible for coming to decision on complex copyright issues.” To minimize the risk of overblocking legitimate user content, platform providers should only actively detect and block manifestly infringing content, meaning content that is “identical or equivalent” to the information provided by rightsholders, the AG opinion says. Such content could be presumed illegal. By contrast, in all ambiguous situations potentially covered by exceptions and limitations to copyright, such as transformative works or parody, priority must be given to freedom of expression and preventive blocking is not permitted.

While the AG’s approach reduces the risk of overblocking, it unfortunately permits mandated upload filters in principle. The opinion fails to acknowledge the limits of technical solutions and could, in practical terms, make error-prone copyright matching tools, such as those used by YouTube, a legal standard. It’s also unfortunate that the AG considers the safeguards set out by Article 17 sufficient, trusting that a user-friendly implementation by national lawmakers or interpretation by courts will do the trick.

These flaws aside, the opinion is a welcome clarification that there are limits to the use of upload filters. It should serve as a warning to Member States that, without sufficient user safeguards, national laws will undermine the “essence” of the right to freedom of expression. This is good news for users and bad news for States such as France or the Netherlands, whose laws implementing Article 17 offer far too little protections for legitimate uses of copyright.

The decision is the result of a legal challenge by the Republic of Poland, questioning the compatibility of Article 17 with the EU’s Charter of Fundamental Rights of the European Union. The opinion now goes to the Court of Justice for final judgment.