Six states raise concerns about legality of Copyright Directive on Internet uploads

According to a new leak, a number of EU Member States share our serious concerns about the proposal for mass surveillance and censorship of uploads to the internet in Europe, included in the European Commission’s proposal for a new copyright Directive. Those Member States seem unwilling to build a censorship machine forcing EU countries to adopt Google’s current practices. They highlight that such practices should not be implemented without making sure of the consequences for fundamental rights and for the rule of law.

The leaked document contains a list of questions posed to the internal legal service of the Council of the EU, signed by six EU Member States: Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands. From the questions, it appears that those Member States feel that the proposals for the upload filter are so grave that their legality is in serious doubt. They have asked the Council legal service to evaluate if the proposal is legal, in light of the proactive monitoring of content being demanded. Following the rulings (Scarlet/Sabam, Netlog/Sabam) of the Court of Justice of the European Union (CJEU) that such proactive filtering are a disproportionate breach of freedom of expression and information, freedom to conduct a business and to the protection of personal data, the Member States want a neutral evaluation.

They also ask if these measures are “justified and proportionate”, in order to verify if they would be in line with the Charter of Fundamental Rights of the European Union. These Member States also ask if the fact that one article of the proposed copyright Directive could fundamentally change the scope of the liability principles for internet providers in the e-commerce Directive. Those principles are crucial for freedom of expression in Europe, because they prevent internet companies from being excessively incentivised to restrict users’ communications.

The six Member States also raised crucial questions about the argument that searching for specific files (within all internet traffic) is a “general” monitoring obligation (see Question 3). This doubt appears very valid, bearing in mind that the e-Commerce Directive (recital 47) explicitly states that exceptions to the prohibition of general monitoring obligations would only be possible when searching for data in “a specific case”. Are millions of searches “a specific case”?

Finally, they also ask whether the wording “communication to the public” is being mixed up with the expression “providing access” when, as these Member States recall, “(t)he CJEU has never considered that is (sic) was sufficient for a service to be ‘providing access’ in order to establish that it is communicating to the public.”

The Council legal service will have to analyse thoroughly these questions before it can take a position on the subject, but right now it seems they will only deliberate orally during the next working group on 11-12 September. It is clear that the European Commission should have, but apparently did not, carry out a neutral assessment of these questions before launching its proposal for the copyright Directive. Therefore, it is welcome that the six EU Member States have invested time and resources in diligently raising fundamental questions on illegality, legal uncertainty and outright chaos that the upload filters suggested in Article 13 of the proposed Directive would bring. It is crucial to clarify what they would mean for human rights in the online environment, for European innovation and for Europe’s credibility in defending online freedoms in its foreign policy. The EU Presidency, Members of the European Parliament (MEPs) supporting the censorship machine, and some Member States (such as France, Spain, and Germany) should take note of the serious questions posed to the Council and re-think their positions on this debate.