Content filtering needs to be regulated
The possible introduction of mandatory content filtering++Content filteringContent filtering is used by rightsholders to exercise their rights. They include notice-and-takedown procedures and content recognition technologies like audiblemagic.com for online platforms++Online platformsSpecifically those platforms that would be subject to the measures in article 13 of the proposed directive of copyright in the digital single market. has provoked substantial policy and academic debates. Recently an excellent paper++Analysis of this paperAn analysis of this paper can be found on Communia. signed by 56 very notable law scholars denounced the proposed measure and instead makes 16 recommendations. What the paper fails to point out is that content filters exist in the market regardless of the article in the proposed directive.
The fundamental question of the current discussion around content filtering should not be whether or not a content filtering measure should be introduced to help rightsholders exercise their rights. Rather, the fundamental question should be how to regulate content filtering in the first place.
The proposed measures would make this voluntary filtering mandatory. As we, and many other stakeholders, have repeatedly stated this would be a incompatible with several decisions of the Court of Justice of the European Union (CJEU) and a deviation from the current liability framework of the E-Commerce Directive as well as the limitations and exceptions to copyright in the Information Society Directive. However the largest issue of mandatory content filtering is the balance of fundamental rights that is required for any mandatory measure.
The rights users have under limitations and exceptions to copyright and related rights cannot be respected by an unregulated (automated) notice-and-takedown system, and certainly not by a strictly technical process++Technical processIt is highly unlikely that this can be done with current technology or technologies that are on the horizon. Even if it would be possible it raises the question if we should give technologies this much control over our freedom of expression. analysing the content, rather it needs to take the status of the user and the context of the use into account as well.
Regulation is needed
MandatoryThe fundamental question should be how to regulate content filtering in the first place. content filtering is nearly impossible due to insurmountable difficulties with fundamental rights. However these difficulties with fundamental rights do not rely on the mandatory nature of the filtering. The disbalance between the fundamental rights due to content filtering already exists. All content filtering has these issues.
We agree with the conclusion of the law scholars that article 13 of the proposed directive should be so radically changed as to be unrecognizable (i.e. delete article 13 in its entirety) and EU policy makers should certainly take the recommendations of the law scholars to heart.
Additionally, the policy makers should proactively apply these recommendations to the current voluntary filtering technologies and notice-and-takedown procedures++Notice-and-takedown proceduresAs the paper argues: “an legislative design of the ‘notice and takedown’ procedure should be introduced, accompanied by an appropriate ‘counter notice’ procedure” (pg. 4).. Content filtering should be regulated. This regulation should include a fair balance between the fundamental rights, especially the freedom of expressionThe disbalance between the fundamental rights due to content filtering already exists., the protection of personal data and the right to property. Leaving content filters unregulated distort this balance. Finally, content filters, and online platforms should respect the possibilities that the limitations and exceptions to copyright provide to their users. These user rights should be on par with the interest of the rightsholders.
