University of Hertfordshire

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.