'Upload filters' and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market

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Abstract

This paper critically examines to what extent Article 17 of the EU Directive on Copyright in the Digital Single Market (CDSM) could be implemented in a way which complies with the right of online content-sharing service providers and uploaders to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (ECHR), the E-Commerce Directive 2000/31 and the General Data Protection Regulation 2016/679. The analysis draws upon Article 17 CDSM Directive, the case-law of the Strasbourg and Luxembourg courts, and academic literature. It assesses the compliance of ‘upload filters’ with the European Court of Human Rights’ (ECtHR) three-part, non-cumulative test to determine whether the obligations laid down in Article 17 can be implemented: firstly, that it is ‘in accordance with the law’; secondly, that it pursues one or more legitimate aims contained in Article 8(2) and 10(2) Convention; and thirdly, that it is ‘necessary’ and ‘proportionate’. The paper also evaluates the compatibility of upload filters with the ECtHR principle of presumption of innocence under Article 6 ECHR. It proposes that for Article 17 to be a human rights-compliant response, upload filters must be targeted specifically at online infringement of copyright on a commercial-scale.

Original languageEnglish
Number of pages31
JournalInternational Review of Law, Computers & Technology
Early online date17 Mar 2020
DOIs
Publication statusE-pub ahead of print - 17 Mar 2020

Keywords

  • Upload filters
  • notice and staydown
  • human rights
  • Article 17 Directive on Copyright in the Digital Single Market
  • Privacy
  • Protection of personal data
  • Freedom of expression
  • right to a fair trial
  • GDPR
  • Article 14 E-Commerce Directive
  • Article 15 E-Commerce Directive: General monitoring
  • Recital 47 E-Commerce Directive: Specific monitoring
  • Recital 48 E-Commerce Directive: Duty of care
  • ECHR
  • EU Charter
  • Google
  • Audible Magic
  • AI
  • automated decision-making and profiling
  • content recognition and filtering technology

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