“Download filters” do not violate freedom of expression, says Advocate General * TorrentFreak

In 2019, the European Parliament adopted the new Copyright Directive which aims to modernize the way copyright is protected in the online environment.

After the adoption of the directive, the various EU member states started to work on implementing the text in local legislation.

This includes the controversial Article 17, which requires online services to license content from copyright owners. If this is not possible, these companies should ensure that the infringing content is removed and not uploaded again to their services.

Many opponents fear that this language will effectively lead to broad “download filters” that will remove more content than necessary. This concern has been reiterated by several experts over the years.

Polish opposition

After massive protests failed to stop the legislation, Poland was the opposition’s last glimmer of hope. The country has asked the EU Court of Justice to overturn Article 17 because it would violate the freedom of expression of European citizens. Yesterday that hope was dashed.

In a lengthy Opinion, Advocate General Saugmandsgaard Øe dismissed the appeal brought by the Republic of Poland. According to the GA, the European Commission has already made it clear that Article 17 should only be used to target clearly infringing material.

“Article 17 of Directive 2019/790 contains sufficient guarantees to delimit the scope of the limitation on the exercise of the right to freedom of expression resulting from the contested provisions”, AG writes.

Ambiguous downloads should not be blocked

The text of Article 17 specifies that online services can only block content that is “identical” and “equivalent” to files that have been reported by copyright holders. This does not include media that only use a short piece of copyrighted content in a larger context.

Saugmandsgaard Øe points out that in those “ambiguous” situations where fair use and other copyright exceptions might apply, online services should not preemptively block content.

“In all ambiguous situations – short excerpts from works included in longer content, ‘transformative’ works, etc. – in which, in particular, the application of exceptions and limitations to copyright is reasonably possible, the content concerned cannot be the subject of a preventive blocking measure, ”he writes.

False positives are a bigger problem than false negatives

The European Parliament, the Council and the Commission have underlined that for online services it is more important to prevent the blocking of legitimate content than to stop potential copyright infringements at all costs. It should properly protect people’s freedom of speech.

“In other words, the legislator considered that ‘false positives’, consisting in blocking legal content, were more serious than ‘false negatives’, which would amount to letting certain illegal content pass,” writes Saugmandsgaard Øe.

Although it seems clear, there are still several open questions. There is no clear definition of when something is clearly offending and when it is not.

The GA recognizes this in his opinion but does not provide clear answers. What is clear, however, is that Member States need to ensure that their Article 17 implementations include sufficient safeguards to prevent excessive blocking.

Early responses

Patrick breyer, MEP from the Pirate Party, is a staunch opponent of Article 17. In response to the opinion, he noted that download filters can still lead to many errors.

“While the Advocate General calls for the responsibility of Member States to only target illegal content, the software will not be able to recognize which content is clearly infringing and which is not, as it is undoubtedly error prone, ”says Breyer.

In addition, several countries have already implemented Article 17 without all the guarantees mentioned, so these could still violate freedom of expression.

“In addition, countries which have implemented the Copyright Directive in accordance with Commission directives would now, on the basis of the Advocate General’s opinion, be in violation of freedom of expression by line, ”Breyer writes.

This last point is shared by Communia who, in a initial response, notes that several EU member states will have to go back to square one.

“Most (if not all) of the national implementations we’ve seen so far clearly do not meet this standard and if the CJEU follows the GA it will have to return to the drawing board (or face legal challenges. “, wrote Communia.

This comment suggests that the uncertainties of Article 17 are expected to last for some time and that the finer details may need to be clarified by the EU Court of Justice.

The opinion of the Advocate General is not binding. However, in most cases the recommendations are followed by the EU Court of Justice, which will likely deliver its final verdict later this year.