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 language | English |
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Number of pages | 31 |
Journal | International Review of Law, Computers & Technology |
Early online date | 17 Mar 2020 |
DOIs | |
Publication status | E-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
- Audible Magic
- AI
- automated decision-making and profiling
- content recognition and filtering technology