TY - JOUR
T1 - 'Notice and staydown' and social media: amending Article 13 of the Proposed Directive on Copyright
AU - Romero Moreno, Felipe
N1 - © 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
PY - 2019/5/4
Y1 - 2019/5/4
N2 - 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.
AB - 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.
KW - ECHR
KW - human rights
KW - Notice and staydown
KW - Article 13 EU Copyright Directive
KW - Article 17 EU Copyright Directive
KW - Upload filters
KW - Privacy
KW - Freedom of expression
KW - right to a fair trial
KW - ECtHR
KW - CJEU
KW - Google
KW - Audible Magic
KW - Content ID
UR - http://www.scopus.com/inward/record.url?scp=85047809608&partnerID=8YFLogxK
U2 - 10.1080/13600869.2018.1475906
DO - 10.1080/13600869.2018.1475906
M3 - Article
SN - 1360-0869
VL - 33
SP - 187
EP - 210
JO - International Review of Law, Computers & Technology
JF - International Review of Law, Computers & Technology
IS - 2
ER -