Last week we learned that the Estonian Council Presidency endorses the European Commission’s plans for censorship machines – a planned law that would force online platforms to surveil all user uploads in search of copyrighted content.

Six EU member states expressed doubts about the legality of this proposal, we learn today in a new leak. Statewatch made public a list of legal questions put to the Council’s own in-house legal service by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands.

But the Estonian presidency didn’t care: They launched their proposals without waiting for the legal service to answer the questions – and without adequately addressing most of the specific concerns put forward.

These are the concerns:

1. Incompatible with fundamental rights

The first issue raised by the 6 countries is the incompatibility of upload filters with the Charter of Fundamental Rights.

Copyright exceptions such as parody or quotation “are the embodiment of fundamental rights in copyright”, the six member states point out. Upload filters don’t respect copyright exceptions by default, they argue: Legal uses of copyrighted content will be subject to automatic takedowns by filters. Only after the fact will a user be able to complain and get a chance at having their perfectly legal content reinstated.

Therefore, the Member States ask: Can the Commission proposal (“Article 13”) be considered to be in line with the Charterof Fundamental Rights, justified and proportionate? For context, they point out that the Court of Justice of the EU has already found conflicts between content filters and fundamental rights in the past.

The Estonian Council Presidency’s two proposals for a possible compromise text on Article 13 acknowledge that the problem exists by adding language that pays lip-service to these issues – but then leaves them unfixed:

The proposed Recital 39c demands that all measures employed by internet platforms to comply with the new law respect freedom of expression and information, and that copyright exceptions should continue to apply. However, these assurances fall flat, because the recital goes on to posit that in order to achieve this, it’s sufficient for the filters to come with a redress mechanism under which users can complain about wrongful deletions. Remarkably, the Estonians seek to further limit the already questionable usefulness of such redress mechanisms by suggesting in Article 13 (2) that it’s the rightsholders themselves who should have the last word over user complaints. Who could be more ill-equipped to make a decision about whether the users’ fundamental rights, as guaranteed through copyright exceptions, have been respected than the rightsholders who have asked for the content to be taken down in the first place?

2. Contradicts general monitoring ban

The 6 countries also question the compatibility of the content filters with another important piece of EU law, the E-Commerce Directive. Article 15 of that directive forbids general monitoring obligations for internet platforms.

The CJEU has made it clear in the past that a filtering system that monitors all the data of its users would constitute such a general monitoring obligation and would therefore be impermissible.

The Commission holds that the censorship machines it proposes would not constitute general monitoring because they only look for specific works, namely those identified by rightsholders. Of course, the same can be said about all the cases that ended up before the CJEU, which came to a very different conclusion about the legality of such filters. What mattered to the Court was not what the filter is trying to find, but whether it needs to look at every single upload by each and every user in order to find it.

In fact, it’s hard to even conceptualize monitoring that doesn’t look for something specific: In order to filter content, you need to know what you want to remove. If the interpretation by the Commission were the correct one, the ban on general monitoring obligations would never apply in practice, because all monitoring would count as specific monitoring.

The 6 countries therefore ask the Legal Service to evaluate whether the Commission proposal would constitute a general monitoring obligation.

Disappointingly, the Estonian Council presidency appears to be accepting the European Commission’s weak argument about “specific monitoring” at face value. Both compromise proposals still include the obligation for platforms to install content filters, only stating that platforms must apply these to “specific works and other subject-matter as identified by [the rightsholders]”.

3. Changes platform liability

The 6 countries are concerned that the proposal threatens to redefine which online companies can be considered liable for the activities of their users, despite the European Commission’s assurances that it merely repeats established case law.

The Commission would spare only one category of services from having to install upload filters: Hosting providers which do not optimise uploaded content in any way. Presumably, that would make any service that so much as offers a search function, an alphabetical sorting of uploaded files, or any user interface whatsoever, directly liable for the copyright infringements of their users.

As the 6 countries rightly point out, this is an unfaithful summary of the case law. The CJEU only stripped platforms that actively interfere with the uploaded content to an extent that gives them actual knowledge or control of illegal content from the so-called “safe harbour provision”.

The 6 countries therefore ask the Legal Service to assess whether the summary of the relevant case law given in the Commission proposal is “accurate and complete”. If this is not the case, they question whether it is appropriate to change the interpretation of a broad instrument like the safe harbour provision, which applies to all kinds of illegal activities, in a law that’s just about copyright.

They suggest removing any uncertainty by explicitly stating in the new law that the E-Commerce Directive remains unchanged by it. To their credit, the Estonian presidency at least took that last bit of advice on board and added the E-Commerce Directive to the list of legislation in Article 1 that should remain unchanged by the proposal. And indeed, their proposed Option A even deletes the offending sentence entirely.

It is all the more unnerving that Option B instead doubles down on the idea that any hosting provider that optimises user uploads should be directly subject to copyright law, by moving the passage from the recital section to an article, where it is directly legally binding on Member States. Option B states that in the case of such “active” host providers, the hosting and provision of access to the user-uploaded content should in itself constitute a copyright-relevant act, a communication to the public.

Ironically, the Estonian Presidency thereby does exactly what the 6 countries warn about in their final legal concern:

4. Redefines “communication to the public”

In copyright law, a licence is required whenever somebody commits an act that is protected under copyright law, unless there is an exception that allows them to perform that act. The list of protected acts includes reproduction, distribution and communication to the public. Redefining what those words mean would therefore vastly change the impact of copyright law with the stroke of a pen.

The Commission suggests in its proposed law that whenever a user uploads something to a platform, there are two separate acts of “communication to the public” taking place at the same time: It’s not just the user who uploaded it who committed a copyright-relevant act, but also the platform that enabled them to do so. That would mean that both would need to get a licence from the rightsholder.

The European Commission again claims that it is merely summarising existing case law here – but the 6 countries have doubts about that. They point out that the CJEU has never made such a sweeping statement. Instead, it only found that “providing access” can constitute an act of communication to the public under the very specific circumstance that the provider knows that the content was put online without the consent of the rightsholder.

Again, the Commission omits the important element of knowledge about copyright infringements taking place from its summary of the legal situation. The 6 countries ask the Legal Service whether using the term “provide access to the public” creates legal uncertainty given that the Commission’s interpretation of that term does not match the CJEU’s.

The way the Estonian presidency addresses this problem is just baffling. It does not even try to pretend that it wants to keep the definition of communication to the public intact. Instead, in its Option B, it adds a new provision that actively forces Member States to extend the existing definition of communication to the public to include all instances where a host provider optimises the presentation of uploaded content and makes it publicly accessible (which would, again, include simple optimisations such as user interfaces and search functions). This is completely at odds with its statement in Article 1 that the InfoSoc Directive, where the right of communication to the public was introduced, should remain unchanged by the new legislation.

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Estonia needs to live up to its reputation as digital champion

In summary, the Estonian Presidency seems to have learned very little from the legal concerns raised by its Council colleagues. This is extremely disappointing not least because Estonia likes to present itself as a digital champion that can be expected to pay closer attention to the possible unintended consequences of badly drafted Internet legislation.

The Estonians would do well to publish the legal service’s response to the questions made public today, and to rework their own compromise proposals to bring them in line with the Charter of Fundamental Rights and the existing EU law that they claim to leave untouched.

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