1. 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

2. There is this great (French) saying…

3. With great power comes great responsibility

4. This is exactly our slogan for regulating online platforms!EC

5. With great power comes great responsibility

6. What the hell does responsibility really mean?

7. I know! I know! EC

8. So what should responsible actors look like?

9. A Tale of 2 Sticks

10. You shall!
I. The hard Stick

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

12. Art. 13 + Recitals 38 & 39 of the proposal

13. 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

15. So what? X

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

17. What’s wrong with that? X

18. Well…

19. 1

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

21. (automatic) Detection + (automatic) Removal

22. Why?

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

24. However

25. 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

26. Back in 2012

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

28. 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

29. It is true

30. In Article 13 of the proposal

31. “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.”

32. BUT

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

34. Yet

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

36. To sum up

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

38. Freedom of expression

39. 2

40. If CRT is used systematically

41. There is an argument

42. That this amounts to general monitoring

43. Article 15 of the E-commerce Directive prohibits general monitoring

44. It is true

45. Rec. 47 E-commerce Directive

46. Monitoring obligations in a specific case are ok

47. BUT

48. With CRT

49. Are targeted:
All users
All user activities

50. Back in 2012

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

52. 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

53. 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

54. Therefore

55. Violation of Art. 15 ECD

56. +

57. Right to data protection

58. 3

59. CRT has a cost

60. Back in 2012

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

62. 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

63. Freedom to conduct one’s business

64. 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”

65. Remember

66. With great power comes great responsibility

67. Are they not meaning

68. With great power comes greater power?

69. 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

70. Not to mention that not everyone can develop its own CRT

71. So the strongest are even more empowered!

72. PLEASE
II. The
Soft Stick

73. The Communication on tackling illegal content online 2017

74. Towards an enhanced responsibility for online platforms

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

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

78. Wait!!!!!!!!! X

79. What does proactive really mean?X

80. Easy peasy!

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

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

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

84. Platforms only need re-upload filters!

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

86. Help!
Sophie

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

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

89. Very naively…

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

92. Remember

93. With great power comes great responsibility

94. Are they not meaning

95. With great power comes greater power?

96. Power to determine what is illegal
Power to monitor user activity

98. III. A call
for a Wise Stick

99. With great power should come !
safeguards

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

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

102. Could these processes be judicial processes?

103. Judicial processes are slow…

104. Nota Bene

105. There is one consideration that is sometimes overlooked

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

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

108. Thank you!