Online content regulation and human rights: what should responsible private actors look like? Associate Prof. Sophie Stalla-Bourdillon, University of Southampton, UK Director of Ilaws and iCLIC @SophieStallaB

There is this great (French) saying…

With great power comes great responsibility

This is exactly our slogan for regulating online platforms! EC

With great power comes great responsibility

What the hell does responsibility really mean?

I know! I know! EC

So what should responsible actors look like?

A Tale of 2 Sticks

You shall! I. The hard Stick

The proposal for a new Copyright Directive in the Digital Single Market 2016

Art. 13 + Recitals 38 & 39 of the proposal

Online platforms that store and give access to user generated content Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall take appropriate measures, e.g. implement content recognition technology

So what? X

Are they not simply asking platforms to automatically detect potentially infringing content? X

What’s wrong with that? X

Well…

1

Content Recognition Technology (CRT) is meant to be used for:

(automatic) Detection + (automatic) Removal

Why?

Because CRT is described as a measure to prevent the availability of © works

However

CRT is not (yet) able to asses context * CRT is not (yet) able to asses context * “The Commission supports further research and innovative approaches going beyond the state of the art with the objective of improving the accuracy of technical means to identify illegal content…” EC 2017

Back in 2012

CJEU Sabam/Netlog 2012 (CJEU Scarlet/Sabam 2011)

That injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. In addition, in some Member States certain works fall within the public domain or may be posted online free of charge by the authors concerned! CJEU

It is true

In Article 13 of the proposal

“Member States shall ensure that the service providers … put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.”

BUT

These mechanisms are meant to be applied after the removal of content!

Yet

Research shows that complaint mechanisms are not a robust safeguard against abuse

To sum up

CRT is not able to distinguish between legal and illegal content because context matters

Freedom of expression

2

If CRT is used systematically

There is an argument

That this amounts to general monitoring

Article 15 of the E-commerce Directive prohibits general monitoring

It is true

Rec. 47 E-commerce Directive

Monitoring obligations in a specific case are ok

BUT

With CRT

Are targeted: All users All user activities

Back in 2012

CJEU Sabam/Netlog 2012 (CJEU Scarlet/Sabam 2011)

The injunction imposed on the hosting service provider requiring it to install the contested filtering system would oblige it to actively monitor almost all the data relating to all of its service users in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the hosting service provider to carry out general monitoring… CJEU

The injunction requiring installation of the contested filtering system would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network by its users. The information connected with those profiles is protected personal data because, in principle, it allows those users to be identified! CJEU

Therefore

Violation of Art. 15 ECD

+

Right to data protection

3

CRT has a cost

Back in 2012

CJEU Sabam/Netlog 2012 (CJEU Scarlet/Sabam 2011)

In the main proceedings, the injunction requiring the installation of the contested filtering system involves monitoring all or most of the information stored by the hosting service provider concerned, in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also works that have not yet been created at the time when the system is introduced. Accordingly, such an injunction would result in a serious infringement of the freedom of the hosting service provider to conduct its business! CJEU

Freedom to conduct one’s business

It’s not exactly best practice for a law- maker to informally add to Art. 13: “trust us CRT will be required only when they exist and when they are cheap”

Remember

With great power comes great responsibility

Are they not meaning

With great power comes greater power?

Power to determine what is illegal Power to monitor user activity * * If you want complaint and redress mechanisms, which you should, reference files will need to be linked to users

Not to mention that not everyone can develop its own CRT

So the strongest are even more empowered!

PLEASE II. The Soft Stick

The Communication on tackling illegal content online 2017

Towards an enhanced responsibility for online platforms

I can have Art. 13 without Art. 13 and even more than Art. 13 ! EC

Being proactive does not mean being active! All platforms should be proactive!

Wait!!!!!!!!! X

What does proactive really mean? X

Easy peasy!

Let’s assume there is a database of © protected works somewhere The platform filters (i.e. restrict access to) all the matching files!

This is “great” because there is no Human Rights issue as the platform is the one deciding! * * Obviously the Communication is not binding!

This is “great” because this means platforms do not need to put in place upload filters!

Platforms only need re-upload filters!

Which should mean [but this is not written] this is monitoring in a specific case

Help! Sophie

I don’t understand what the difference between upload and re-upload filters is!?!?! Sophie

Isn’t it the case that both upload filters and re-upload filters cannot assess context? Sophie

Very naively…

Isn’t it what Art. 13 is trying to do, I mean, to impose these “re-upload” filters? X

Remember

With great power comes great responsibility

Are they not meaning

With great power comes greater power?

Power to determine what is illegal Power to monitor user activity

III. A call for a Wise Stick

With great power should come ! safeguards

If CRT cannot properly determine what is illegal CRT should NOT be systematically used for automatic detection + automatic removal

Processes should be put in place to ensure all interests at stake are taken into account before removal

Could these processes be judicial processes?

Judicial processes are slow…

Nota Bene

There is one consideration that is sometimes overlooked

While some platforms might have an interest in “cleaning” their systems as quickly as possible

Law enforcement has an interest in keeping allegedly illegal content online to investigate

Thank you!