The Battle for the Internet
From elections to dating, the internet is increasingly shaping our lives. In the effort to control
copyright abuse, however, the European Commission is going too farby Joe McNameeOP-ED
Europe’s laws on how internet companies should deal
with illegal content online are among the best in the
world. They require companies to act quickly when
informed of illegal content and also prevent member
states from imposing a “general obligation to moni-
tor” all online communications. This strong legal
framework has been a guiding star worldwide for
fundamental rights online.
Then came the newly proposed Copyright directive.
This is a draft proposal launched by the European
Commission in September 2016 and awaiting
approval by the European Parliament and the member
states. The proposal comes in the context of what the
Commission calls its “better regulation” agenda.
Instead, however, it is a Trump era “post-truth” chal-
lenge to free speech and citizens’ rights, to the health of
the EU’s online economy and Europe’s leading role in
the world for defending freedom of expression online.
Let’s take a closer look: Without changing the
underlying statute governing illegal content, the
directive would reinterpret existing law to address
the unauthorized use of copyrighted materials
through a series of formal explanatory notes. Thus,
copyright infringements would now be subject to the
existing rules and the new ones simultaneously.
Overlapping and often contradictory, the result is a
hodgepodge that would make application difficult
and undermine the existing legal framework for the
role and responsibilities of internet companies.
PLANNED INCONGRUENCE
On the face of it, this sounds incompetent. It is not.
The motivation behind this planned chaos can be
found in the explanatory memorandum of the direc-
tive: to ensure “a balanced bargaining position
between all actors”.
Internet companies are increasingly faced with
demands for blocking, filtering and surveillance, as
well as for the payment of license fees for material up-
loaded by their users, of which they have no knowledge.
Under the new directive, they would have to deal with
these demands in a legal environment that offers no
clarity, no guarantee that a court would not shut them
down or hold them liable for the actions of their users.
The result is a case study in bad drafting and legal
uncertainty that is entirely deliberate – a consciously
“worse regulation agenda” from the European Commis-
sion that has committed itself to the opposite. In the
past, the European Court of Justice has declared such
broad restrictions illegal, but a 2014 ruling on an
Austrian case opened the door for a policy shift. Due to a
peculiarity of Austrian law, non-specific obligations
imposed by injunction were deemed permissible. The
European Commission thus felt empowered to propose
a similarly vaguely worded version which, however,
was contradicted by a second European Court of
Justice ruling this July, insisting that the law must be
specific about how restrictions on fundamental rights
will be imposed.
It gets worse, however, when we turn to the direc-
tive’s famous article 13. Here, the European Commis-
sion, which has a legal duty to be the “guardian” of EU
treaties, goes completely off the rails. The proposal is
that internet companies “take measures” such as “the
use of effective content recognition technologies” to
“prevent the availability” of protected content identi-
fied by recognition technologies – sweeping up legal
uses for education, quotation, etc. This means, with-
out saying so precisely, that internet companies
should filter all content that is being uploaded to the
internet. Why is the European Commission being so
coy? Because the European Court of Justice has ruled- twice – that such filtering may not be imposed by law.
PROPRIETY IS IN THE EYE OF THE BEHOLDER
The European Commission’s proposal demands that
measures taken be “appropriate and proportionate,”
presumably to avoid explicitly mandating the kinds
of filtering that were twice rejected by the Court
(although Commission Vice-President Andrus
Ansip told the European Parliament that the new ob-
ligations could be respected by using available filter-
ing software). But this also gives the Commission an
escape clause: It can claim that any filtering or block-
ing was the choice of the companies themselves.
So can the European Commission propose restric-
tions on the public’s free expression and use of the
internet, to avoid its own legal obligations? Possibly
not. As recently as July of this year, the European
Court of Justice emphasized that laws restricting
fundamental rights must be clear about exactly how
those rights should be restricted. However, if it gets
adopted, the directive – precisely because it is so
vague – will be very hard to challenge in court. A simi-
larly unlawful EU directive forcing telecom compa-
nies to retain data for law enforcement purposes was
in place for six years before the Court annulled it.
Important decisions will be made by the EU institu-
tions in the coming weeks. You can share your views
with the European Parliament on savethememe.net.JOE MCNAMEE is executive
director of European Digital
Rights initiative (EDRi), a
Brussels-based association of
European civil and human rights
organizations, dedicated to
defending rights and freedoms
in the digital environment.
He is not related to publisher
Dardis McNamee.