EU Tech Policy Brief: December 2017

This is the December issue of CDT’s monthly EU Tech Policy Brief. It highlights some of the most pressing technology and internet policy issues under debate in Europe, the U.S., and internationally, and gives CDT’s perspective on them.

eEvidence: The EC to file brief in US Supreme Court hearing of Microsoft-Ireland case

The European Commission is expected to file an amicus brief in the U.S. Supreme Court hearing of the Microsoft-Ireland case, a 2014 dispute about whether U.S. federal investigators can compel U.S. companies to disclose digital information stored abroad, in this case at a data centre in Ireland. While the EC will not support either party, it intends to ensure that the Supreme Court decision is informed by a correct understanding of EU data protection rules that govern the data in question. CDT intends to file in support of Microsoft’s position, as we did for the federal appeals court in 2015.

Extremist Content Online: CDT Talks Free Expression with Tech Against Terrorism and the Global Internet Forum to Counter Terrorism

The EU Internet Forum (EUIF), which ‘brings together governments, Europol and technology companies to counter terrorist content and hate speech online’, held events with Tech Against Terrorism and the Global Internet Forum to Counter Terrorism in Brussels in early December. At these events, CDT cautioned against the risk that direct cooperation between government and industry will result in overbroad censorship of legal content. We recognise the responsibility of both sectors to curb the use of internet platforms for incitement to religious or ideological violence and hatred. However, when government authorities enforce speech restrictions through company content reviewers and automated moderation tools, it is essential to ensure maximum transparency, accountability, and judicial oversight. Otherwise, legitimate political debate will likely be targeted in addition to illegal incitement. CDT has consistently reiterated the importance of upholding these same principles, and we encourage authorities to ensure that government-led initiatives such as the Hate Speech Code of Conduct and Internet Referral Units ensure that these conditions are met.

Copyright: LIBE Opposes Mandatory Censorship Filter

On 20 November, the Civil Liberties (LIBE) Committee of the European Parliament adopted its Opinion on the Commission’s proposal on the Copyright in the Digital Single Market (DSM) Directive. The Opinion focuses on the upload filtering provision in Article 13, which would force internet intermediaries to use content identification technology to prevent users from uploading unlicensed, copyrighted content. We were pleased that LIBE adopted amendments to narrow the scope of the provision, and importantly, did away with the content monitoring obligations. Article 13 as proposed by the Commission is detrimental to fundamental rights, as we highlighted last month in an open letter co-signed by over 50 human rights, media freedom, and press organisations. We also restated our concerns with the copyright proposal as a whole in an open letter signed by over 70 organisations, representing a wide range of stakeholders. Deleting Article 13 remains the best option, but if the leading Legal Affairs (JURI) committee supports LIBE’s recommendations in their vote next year, it is progress.

Copyright: CDT Joins Campaign Defending Creators’ Freedom of Expression

We recently joined ‘Create Refresh’, a campaign addressing EU copyright reform and defending the internet as an open space for creators large and small. The campaign primarily opposes the upload filtering provision in Article 13 of the copyright proposal, which will negatively impact creators’ ‘ability to remix, remake, create, reference, parody, document, critique, and meme content’. The campaign argues that ‘filters may not be able to detect whether something is within the realm of fair use, meaning that original content could be automatically deleted without the consent of the creator’. We also highlighted the flaws of automated filtering technology in our recent paper, ‘Mixed Messages? The Limits of Automated Social Media Content Analysis’. Creators’ use of this campaign demonstrates that their right to a fairer remuneration will not be addressed by means of Article 13, as the Commission and those representing rightsholders or collecting societies would have us believe.

Copyright: Estonian Presidency Calls For Political Guidance from Member States

On 18 December, the Estonian Presidency held its last meeting of the Intellectual Property attachés, where the latest Presidency compromise proposal was presented. The text indicates which elements of the Commission’s proposal ‘in the Presidency’s view, need political guidance in order to continue discussions with a view to reach a political agreement’. These elements unsurprisingly concern the press publishers’ right (Article 11) and the upload filter obligation (Article 13). Regarding the press publishers’ right, the Presidency continues to propose two options. We strongly support ‘Option B’, which proposes to improve the ability of press publishers to act against infringing uses of their publications by providing them with a presumption of representation in court. Regarding Article 13, things get more complicated, as the Presidency proposes to seek political guidance on the notion of ‘communication to the public’. Thus, the current Presidency is not only endorsing the Commission’s plan to impose censorship filters, but going beyond the proposal itself. We reiterate that this would require a thorough Impact Assessment before discussions go any further.

31 MEPs Voice Concerns Over EC’s Approach to Tackling Illegal Content Online

Early this month, a group of 31 Members of the European Parliament (MEPs) published a letter to the European Commission relating their concerns with several of the recommendations made in the Commission’s Communication on tackling illegal content online — particularly, those related to “automatically detecting such content and preventing its reappearance”. We made the same points in our commentary on the Communication, which is another push for privatised law enforcement and extensive use of automated filtering that risks overbroad speech restrictions. We also agree that additional requirements for notice and action procedures are urgently needed in the EU, such as more detail regarding the obligations of those marking content for removal, and the evidentiary standards that notifications should meet to be actionable. The Commission should follow the MEPs’ advice in 2018.

EC Publishes Guidance on Enforcement of IPRs

As part of its IP Package, the Commission has adopted guidelines in the form of a Communication that clarifies the provisions of the Directive on the enforcement of intellectual property rights (IPRED). The Commission saw a need to provide guidance given the diverging interpretations by Member States of the directive. Particularly on the issue of injunctions, we welcome the Commission’s clarification that intermediaries are not to be required to implement “excessively broad, unspecific and expensive filtering mechanisms”. This language contradicts Article 13 of the Directive on copyright in the Digital Single Market which mandates the use of upload filter technologies. Again, we caution against the limits of this type of technology.

Fake News: CDT to Respond to 2018 Public Consultation

Digital Commissioner Mariya Gabriel is setting up a high-level expert group on fake news and online disinformation, and launched a public consultation on the subject, due February 2018. She announced these initiatives at a two-day public stakeholder meeting in November that brought together media organisations, journalists, academics, companies, and public interest groups. CDT will participate in the debate, advocating for (among other things) principles laid out in the Joint Declaration issued earlier this year by the freedom of expression representatives of the United Nations, the Organization for Security and Co-operation in Europe, the Organization of American States, and the African Commission on Human and Peoples’ Rights.

ePrivacy/Data Retention: Council Discussions Re-Open ‘Data Retention’ Can of Worms

In parallel with the review of the Commission’s proposal for an ePrivacy Regulation, the Council has stepped up discussions on new data retention rules. Member States have taken different approaches to data retention following the 2014 ruling by the Court of Justice of the EU, which invalidated the Data Retention Directive. Some countries maintained existing practices, while others amended or terminated theirs. Certain Member States are now looking into the possibility of implementing new EU-wide data retention rules, taking into account the 2016 CJEU ruling in the Watson/Tele2 case. Some see the proposed ePrivacy Regulation as an opportunity to do this. A leaked Council working paper, prepared on the basis of the responses to a questionnaire issued by the Estonian Council Presidency, demonstrates the wide range of views taken by Member States and Europol on this issue. Most Member States seem to concur on the need for data retention rules in the EU. CDT has long opposed data retention mandates due to their potential impact on rights to privacy and free expression, and we’ll continue to engage along these lines in the current debate.

ePrivacy: Estonian Council Presidency Presents New Compromise Text

The Estonian Council Presidency recently issued a compromise text on the Commission’s ePrivacy Regulation proposal that consolidates various proposals submitted by Member State delegations in the past months, as well as relevant provisions of the GDPR. The Council’s text is less prescriptive than the Commission’s proposal, as it opens up new grounds for legal processing of communications content and does not mandate rules on tracking walls. We will continue to caution against the unintended consequences of the prescriptive nature of the Commission’s proposal, with the Parliament’s position being even more restrictive.