Sunday, May 28

The Copyright Directive is still alive, but stopped: the limits of European justice to the blocking of content

Spain is one of the countries that has already carried out the transposition of the controversial Copyright Directive. A European law approved in 2019 and popularly known in our country as “Iceta Law”. This is a controversial piece of legislation that regulates the use of algorithms to block content, in what several defenders of digital rights have classified as “algorithmic censorship.” Three years later, the European High Court of Justice (CJEU) has ruled.

The use of algorithms to block content is legal… with nuances. The European Union can apply all the laws it wants, but then the judiciary has to confirm that they do not conflict with fundamental rights. And precisely article 17 of the Copyright Directive was highly criticized for a possible violation of freedom of expression.

Despite criticism of previous filters, algorithms to automatically block content, the Court has considered that the Copyright Directive does fit into the legal framework, because “it establishes sufficient guarantees and safeguards”. That is, on the one hand it justifies its use on certain occasions. But he has also been quite forceful when it comes to freedom of expression.

The 'Iceta Law' takes censorship beyond European regulations: algorithms will be able to cut streamings and apply it live

Poland was the one who claimed. The case begins with the lawsuit from Poland, which argued that article 17 of the Copyright Directive could cause a limitation in the freedom of expression of European citizens. If companies applied algorithms to block content for infringing copyright, this could lead to censorship where more content is removed than is strictly necessary.

But the CJEU’s decision, following the position of the EU Advocate General, is that the Copyright Directive is well established and does not conflict with freedom of expression because it has a series of rules. For example, that any automated filtering tool must clearly distinguish between legal and illegal content.

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Be careful, because the European Justice does recognize that freedom of expression can be affected. The sentence is one of lime and another of sand. As Cuatrecasas points out, although the lawsuit is dismissed, the CJEU warns that these automated filters “may lead to the blocking of legal content and would be incompatible with the right to freedom of expression and information.”

In the opinion of Felix Reda, from the organization ‘Society for Civil Rights’: “Today’s sentence sets an important precedent for the protection of freedom of expression online. Although, it does not go far enough. [..] At the very least, the court confirms what civil society has been emphasizing for years: automated filters cannot reliably distinguish between copyright infringement and legitimate forms of free expression, such as parody or quotes.”

Consequence? Individual countries will need to specify additional measures in national laws. Countries such as Germany or Austria did introduce specific measures to exclude the use of filters for certain content, such as short works of less than 15 seconds. This is the correct path, according to the CJEU. However, not all countries have taken this into account.

According to Euractiv, only 12 of the 27 member countries have adopted the Copyright Directive. Among them Spain. And in our case, instead of adding measures to protect freedom of expression, it was taken even further by allowing algorithms to cut streaming and apply it live.

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Spain is one of the countries that could have to review the law. The original European Directive has been accepted by the Justice, but by recognizing its possible impact on freedom of expression, the door is opened for the different national laws that do not add sufficient measures to be sued and be considered “insufficient” to protect freedom of expression. One case could be Spain, which was accused of “seeming to be a law tailored to La Liga and Netflix”.

Palace things are going slowly, but it can be considered a small victory that the CJEU has recognized that the use of algorithms to block content can be a problem for freedom of expression.

Image | European Disability Forum

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