'Notice and staydown' and social media: amending Article 13 of the Proposed Directive on Copyright

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Abstract

This paper critically assesses the compatibility of content recognition and filtering technology or so-called notice and staydown approach with the right of social network platforms and users to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Article 13 of the European Commission’s proposal for a Directive on Copyright, the case-law of the Strasbourg and Luxembourg Court and academic literature. It argues that the adoption of content recognition and filtering technology could pose a threat to social network platforms and user human rights. It considers the compliance of ‘notice and staydown’ with the European Court of Human Rights’ (ECtHR) three-part, non-cumulative test, to determine whether a ‘notice and staydown’ approach is, firstly, ‘in accordance with the law’, secondly, pursues one or more legitimate aims included in Article 8(2) and 10(2) ECHR and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that ‘notice and staydown’ could infringe part one and part three of the ECtHR test as well as the ECtHR principle of equality of arms, thereby violating the rights of social network platforms and users under Articles 6, 8 and 10 of the Convention.
Original languageEnglish
Pages (from-to)187-210
Number of pages24
JournalInternational Review of Law, Computers & Technology
Volume33
Issue number2
Early online date29 May 2018
DOIs
Publication statusPublished - 4 May 2019

Keywords

  • ECHR
  • human rights
  • Notice and staydown
  • Article 13 EU Copyright Directive
  • Article 17 EU Copyright Directive
  • Upload filters
  • Privacy
  • Freedom of expression
  • right to a fair trial
  • ECtHR
  • CJEU
  • Google
  • Audible Magic
  • Content ID

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