Strasbourg, 30 September 2016
Dear European Commission,
We very much appreciate the effort to engage into a review and re-assessment of the EU acquis. The future of the Single Market will be digital, if it is not already, and it is essential to determine whether the EU acquis still makes sense in this context. This is true in particular given the recent trend: “Digital content transmitted on private networks and hosted on private platforms is increasingly subject to State and corporate regulation,” writes the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his report of May 2016.
Why we have a problem
However, we have a problem and an important one we believe. The recent developments, starting with the Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe released on 25/05/2016, followed by a series of proposals (Proposal for a Directive amending the Audiovisual Media Services Directive, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market) and soft law initiatives (the EU Internet Forum against Terrorism and the Code of Conduct on Countering Illegal Hate Speech Online) seriously put at risk the consistency and integrity of the EU acquis in this field.
Directive 2000/31 on electronic commerce (E-commerce Directive) sets forth conditional liability exemptions to the benefit of information society providers offering certain types of intermediary services as well as a prohibition of general monitoring obligations.
The prohibition of general monitoring obligations is a means to achieve at least two central objectives:
- the encouragement of innovation, which is essential for the flourishing of the Digital Single Market and
- the protection of fundamental rights of all Internet users and in particular Article 7 and 8, Articles 9, 10 and 14 of the European Charter of Fundamental Rights and the requirement of due process, which lay the foundation of any democratic society. In 2011 (Scarlet v Sabam) and 2012 (Sabam v Netlog) the Court of Justice of the European Union (CJEU) acknowledged that the prohibition of general monitoring obligations was anchored in Articles 8 and 11 of the European Charter of Fundamental Rights.
It is clear both from the text of the E-commerce Directive and the CJEU case law that Member States shall not impose upon providers of intermediary services (e.g. providers of user-generated content platforms such as blogging platforms or other types of social media) an obligation to actively monitor all the data of each of their users in order to prevent the transmission of unlawful content, e.g. infringements of intellectual property rights. More precisely, requiring providers of intermediary services to use automated means, such as Content ID-type technologies, to detect systematically unlawful content is forcing providers of intermediary services to actively monitor all the data of each of their users and thereby is imposing a general monitoring obligation on these providers.
Yet, the proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market in its Article 13 requires providers of intermediary services which consist in the storage and provision to the public of access to large amounts of works or other subject-matter uploaded by their users to put in place measures to “prevent the availability on their services of works or other subject-matter identified by rightholders” such as the use of “effective content recognition technologies.” In other words, Article 13 of the proposal imposes a general monitoring obligation upon a great number of providers of intermediary services. Such an obligation is not a special monitoring obligation but a general monitoring obligation as it does require the monitoring of the activities of all users.
Article 13 of the proposal imposes a general monitoring obligation upon a great number of providers of intermediary services.
Exceptions to the prohibition of general monitoring obligations shall always be narrowly construed, always pursue a legitimate aim, always be based on a clear and foreseeable legal ground as well as always be proportionate. As it stands, Article 13 of the proposed copyright Directive contradicts Article 15 of the ecommerce Directive. Recital 38 of the proposed copyright Directive does not resolve this conflict. Besides, Recital 38 creates other problems of interpretation as it adopts a very narrow reading of Article 14 of the E-commerce Directive and the category of hosting providers as providers of intermediary services.
Moreover, given the CJEU case law and its reference to the European Charter of Fundamental Rights it is doubtful whether Article 13 of the proposed copyright Directive is actually proportionate, even if Article 17(2) of the European Charter provides that intellectual property shall be protected, as Article 17(2) does not have the same beneficiary basis as Articles 7 and 11. Articles 7 and 11 of the European Charter are fundamental pillars of any democratic society. Copyright infringements should not be put too quickly in the same category as serious crimes such as child pornography.
Why it is important to solve it
It is crucial to make sure the prohibition of general monitoring obligations is maintained for at least three fundamental reasons.
- The first one is to preserve legal certainty and make sure private actors still receive a clear message.
- The second one is to encourage innovation and make sure automated means such as screening technologies do not act as a barrier to entry.
- The third one is the most important one: the prohibition of general monitoring obligations is a key safeguard against violations of all Internet users’ human rights.
What we ask for
We are therefore asking the European Commission:
- To maintain the prohibition of general monitoring obligations and make sure that exceptions to general monitoring obligations are always narrowly construed, always pursue a legitimate aim, are always based on a clear and foreseeable legal ground and are always proportionate.
- To make sure a transversal discussion on the importance of Articles 14 and 15 of the electronic Commerce Directive takes place in each of its DGs every time a proposal that has a link with the Digital Single Market is produced.
- To open a public and transparent discussion on the interplay between the proposed copyright Directive and the E-commerce Directive as the former has been released only 4 months after the Commission officially announced that it would not amend/re-open the E-commerce Directive. We would very much welcome opportunities to participate to this process and present our views.
Sophie Stalla-Bourdillon, Associate Professor in IT law, University of Southampton, UK at firstname.lastname@example.org
Eleonora Rosati, Lecturer in IP law, University of Southampton, UK at email@example.com
Matthias C. Kettemann, Postdoctoral Research Fellow, University of Frankfurt, Germany
Ben Wagner, Director of the Centre of Internet & Human Rights (CIHR), European University Viadrina, Germany
Karmen Turk, Lecturer of IT-Law Program, University of Tartu, Estonia
Aleksandra Kuczerawy, Researcher, Research Unit KU Leuven Centre for IT & IP Law (CiTiP), Belgium
Giovanni Sartor, Professor of Legal Informatics and Legal Theory, European University Institute, Law Department, Italy
Paul Przemyslaw Polański, Professor of Law, Kozminski University, Poland
Maurizio Borghi, Professor of IP Law, Bournemouth University, UK
Félix Tréguer, Researcher, ISCC-CNRS, France
Mélanie Dulong de Rosnay, Associate Research Professor, CNRS — Paris Sorbonne, France
Andres Guadamuz, Senior Lecturer in IP Law, University of Sussex, UK
Miquel Peguera, Associate Professor of Law, Universitat Oberta de Catalunya, Barcelona, Spain
Alberto Bellan, Researcher, Università degli Studi di Milano, Italy
Maria Lilla’ Montagnani, Associate Professor of Law, Bocconi University, Italy
Alexandre Tourette, Qualified Maître de Conférences, France
Benjamin Farrand, Assistant Professor, Warwick School of Law, UK
Eoin O’Dell, Associate Professor of Law, Trinity College Dublin, Ireland
Christina Angelopoulos, Lecturer in IP Law, University of Cambridge, UK
Martin Husovec, Assistant Professor in IP Law, Tilburg University, The Netherlands
Christophe Roquilly, Dean for Faculty and Research, EDHEC Business School, France
Dirk Voorhoof, Professor em., Human Rights Centre, Ghent University, Belgium
Jef Ausloos, Researcher, KU Leuven Centre for IT & IP Law — imec, Belgium
Peggy Valcke, Professor of ICT and Media Law, Research Unit KU Leuven Centre for IT & IP Law (CiTiP), Belgium
Eva Lievens, Assistant Professor in Law & Technology, Ghent University, Belgium
Daniel Westman, Lecturer in Law and Information Technology, Department of Law, Stockholm University, Sweden
Federica Giovanella, Postdoctoral Research Fellow, University of Trento, Italy
Nicolas Jondet, Teaching Fellow in IP Law, University of Edinburgh, Scotland, UK
Tito Rendas, Lecturer in Copyright Law, Universidade Católica Portuguesa, Portugal
Andrej Savin, Associate Professor, Law Department, Copenhagen Business School, Denmark
Daria Gęsicka, Assistant Professor, Nicolaus Copernicus University in Toruń, Poland
Rike Maier, Researcher, Humboldt Institute for Internet and Society, Germany
Maciej Siwicki, Assistant Professor in Copyright, Criminal and IT Law, Nicolaus Copernicus University in Toruń, Poland
Betty Tsakarestou, Assistant Professor & Head of Advertising and Public Relations Lab, Panteion University of Social and Political Sciences, Athens, Greece
Georgios Doukidis, Professor, Athens University of Economics and Business, Greece
Spyros Polykalas, Associate Professor, Department of Digital Media and Communication, TEI of Ionian Islands, Greece
Agisilaos Konidaris, Lecturer, Technological Educational Institute of the Ionian Islands, Greece
Lilian Edwards, Professor of Law, University of Strathclyde, UK
Alison Knight, Researcher, University of Southampton, UK
Sebastian Felix Schwemer, Researcher, Centre for Information and Innovation Law, University of Copenhagen, Denmark