Today, the European Court of Justice declared the obligation on social networks to prevent copyright violations by using ex-ante upload filters (Article 17 of the Copyright Directive) compatible with fundamental rights, but imposed very strict conditions. Member of the European Parliament Patrick Breyer, member of the German Pirate Party that led the protests of hundreds of thousands against upload filters in 2019, comments:
“Today’s ruling goes a long way to accomodate the protest voiced by hundreds of thousands who took to the streets against error-prone censorship machines and for freedom of expression online. It is a valuable partial success. The upload filtering mechanisms used to date by corporations such as Facebook or Google do not meet these high standards, which is why I am calling for them to be shut down. In addition, the implementation of the Copyright Directive in EU countries will now need to be revised following the German model which seeks to protect legal uses of copyrighted information – for example in the context of a quote. And finally, today’s ruling should still be incorporated into the new EU Digital Services Act, which is what I will propose today.”
To protect freedom of expression, today’s ruling by the European Court of Justice places strict conditions on upload filters that can hardly be met by the current unreliable filtering algorithms: Technologies “that filter and block legal content during upload” are excluded (para. 85 of the judgment). “A filtering system that may not sufficiently distinguish between illegal and legal content, so that its use could lead to the blocking of communications containing legal content, [would be] incompatible with the right to freedom of expression and information guaranteed by Article 11 of the Charter” (para. 86 of the judgment). The filtering obligation does not apply to content the legal assessment of which “would require an independent evaluation of the content” (para. 90 of the judgment).
Breyer explains: “Even a seemingly ‘insignificant’ error rate of the censorship algorithms of, for example, 0.1% leads to the unjustified censorship of thosands of valuable publications due to the large number of Internet posts, and causes massive damage. For example, no algorithm can reliably determine whether an uploader has a license to a piece of content or not. Because fully automated upload filters cannot technically meet the reliability requirements of today’s ruling, the upload filter obligation pushed through by the copyright lobby was a huge mistake and should be abolished. We Pirates will carry on the fight against censorship machines!”