David Kaye (previously) is the UN's Special Rapporteur on freedom of expression; he just released a detailed report on the catastrophic free speech implications of Article 13, the EU's proposed copyright rule that would make sites filter everything their users post to check for copyright violations.
Kaye's report points out the grave deficiencies with the plan: that it throws fair dealing (the right to reproduce copyrighted works for parody, commentary, criticism, etc) under the bus, because computers can't tell whether you're reproducing a work to comment on it or to just make it available; that it leaves users who get improperly censored out in the cold, with no judicial review of the machines' orders to block their speech; and that it tilts the internet to favour the (mostly US-based) giant internet companies, while imposing an undue burden on EU competitors who are just getting started.
The committee in charge of EU copyright reform votes on this in just five days. Europeans, get in touch with your MEPs today!
The designation of such mechanisms as the main avenue to address users’ complaints effectively delegates content blocking decisions under copyright law to extrajudicial mechanisms, potentially in violation of minimum due process guarantees under international human rights law. The blocking of content – particularly in the context of fair use and other fact-sensitive exceptions to copyright – may raise complex legal questions that require adjudication by an independent and impartial judicial authority. Even in exceptional circumstances where expedited action is required, notice-and-notice regimes and expedited judicial process are available as less invasive means for protecting the aims of copyright law.
In the event that content blocking decisions are deemed invalid and reversed, the complaint and redress mechanism established by private entities effectively assumes the role of providing access to remedies for violations of human rights law. I am concerned that such delegation would violate the State’s obligation to provide access to an “effective remedy” for violations of rights specified under the Covenant. Given that most of the content sharing providers covered under Article 13 are profit-motivated and act primarily in the interests of their shareholders, they lack the qualities of independence and impartiality required to adjudicate and administer remedies for human rights violations. Since they also have no incentive to designate the blocking as being on the basis of the proposed Directive or other relevant law, they may opt for the legally safer route of claiming that the upload was a terms of service violation – this outcome may deprive users of even the remedy envisioned under Article 13(7). Finally, I wish to emphasize that unblocking, the most common remedy available for invalid content restrictions, may often fail to address financial and other harms associated with the blocking of timesensitive content.