UN Human Rights Expert Warns EU Not To Pass Article 13

from the it-will-be-bad dept

The UN Special Rapporteur on freedom of expression has put out another warning that the EU's move towards approving the EU Copyright Directive, and Article 13 in particular, is inconsistent with human rights standards. That's the polite way of saying that it's going to trample all over the public's rights, and especially rights concerning free speech.

“Europe has a responsibility to modernise its copyright law to address the challenges of the digital age,” said the UN’s Special Rapporteur on freedom of expression ahead of a critical vote on the Directive. “But this should not be done at the expense of the freedom of expression that Europeans enjoy today.”

“Article 13 of the proposed Directive appears destined to drive internet platforms toward monitoring and restriction of user-generated content even at the point of upload. Such sweeping pressure for pre-publication filtering is neither a necessary nor proportionate response to copyright infringement online.”

Kaye rightly notes that the proposal, as it stands today, would also entrench the biggest internet companies, rather than enabling real competition:

“In the long run, this would imperil the future of information diversity and media pluralism in Europe, since only the biggest players will be able to afford these technologies.”

He also calls out the fact that this proposal is vague where it needs to be specific, and yet stupidly specific in situations where the drafters clearly don't understand the technology or the nature of expression on the internet:

In the absence of specific requirements on platforms and Member States to defend freedom of expression, it is far from clear how either will comply with the Directive’s proposed safeguards, such as the requirement that “quotation, criticism, review” and the “use [of copyrighted works] for the purpose of caricature, parody or pastiche” be protected, the Special Rapporteur said.

“Even the most experienced lawyers struggle to distinguish violations of copyright rules from exceptions to these rules, which vary across Member States,” Kaye added. “The lack of clear and precise language in the Directive would create even more legal uncertainty.”

“Misplaced confidence in filtering technologies to make nuanced distinctions between copyright violations and legitimate uses of protected material would escalate the risk of error and censorship. Who would bear the brunt of this practice? Typically it would be creators and artists, who lack the resources to litigate such claims.”

It's the last point above that's most important. Even as some content creators are supporting Article 13, the real impact on them will be incredibly damaging. As tons of YouTube creators have learned over the past few years, automated filters frequently create more headaches than they're worth. Legitimate content is regularly taken down, and it's extra difficult for independent creators to make themselves heard. And this will become much worse in a post-Article 13 world, where you have less competition, since only a few internet giants can deal with the requirements of the law.

Filed Under: article 13, censorship, copyright, david kaye, eu, eu copyright directive, free speech, human rights, un

UN Free Speech Expert: EU's Copyright Directive Would Be An Attack On Free Speech, Violate Human Rights

from the don't-let-it-happen dept

We've been writing a lot about the EU's dreadful copyright directive, but that's because it's so important to a variety of issues on how the internet works, and because it's about to go up for a vote in the EU Parliament's Legal Affairs Committee next week. David Kaye, the UN's Special Rapporteur on freedom of expression has now chimed in with a very thorough report, highlighting how Article 13 of the Directive -- the part about mandatory copyright filters -- would be a disaster for free speech and would violate the UN's Declaration on Human Rights, and in particular Article 19 which (in case you don't know) says:

Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

As Kaye's report notes, the upload filters of Article 13 of the Copyright Directive would almost certainly violate this principle.

Article 13 of the proposed Directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful. Although the latest proposed versions of Article 13 do not explicitly refer to upload filters and other content recognition technologies, it couches the obligation to prevent the availability of copyright protected works in vague terms, such as demonstrating “best efforts” and taking “effective and proportionate measures.” Article 13(5) indicates that the assessment of effectiveness and proportionality will take into account factors such as the volume and type of works and the cost and availability of measures, but these still leave considerable leeway for interpretation.

The significant legal uncertainty such language creates does not only raise concern that it is inconsistent with the Article 19(3) requirement that restrictions on freedom of expression should be “provided by law.” Such uncertainty would also raise pressure on content sharing providers to err on the side of caution and implement intrusive content recognition technologies that monitor and filter user-generated content at the point of upload. I am concerned that the restriction of user-generated content before its publication subjects users to restrictions on freedom of expression without prior judicial review of the legality, necessity and proportionality of such restrictions. Exacerbating these concerns is the reality that content filtering technologies are not equipped to perform context-sensitive interpretations of the valid scope of limitations and exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and parody.

Kaye further notes that copyright is not the kind of thing that an algorithm can readily determine, and the fact-specific and context-specific nature of copyright requires much more than just throwing algorithms at the problem -- especially when a website may face legal liability for getting it wrong. And even if the Copyright Directive calls for platforms to have remediation processes, that takes the question away from actual due process on these complex issues.

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.

He goes on to point -- as we have -- that while large platforms may be able to deal with all of this, smaller ones are going to be in serious trouble:

I am concerned that the proposed Directive will impose undue restrictions on nonprofits and small private intermediaries. The definition of an “online content sharing provider” under Article 2(5) is based on ambiguous and highly subjective criteria such as the volume of copyright protected works it handles, and it does not provide a clear exemption for nonprofits. Since nonprofits and small content sharing providers may not have the financial resources to establish licensing agreements with media companies and other right holders, they may be subject to onerous and legally ambiguous obligations to monitor and restrict the availability of copyright protected works on their platforms. Although Article 13(5)’s criteria for “effective and proportionate” measures take into account the size of the provider concerned and the types of services it offers, it is unclear how these factors will be assessed, further compounding the legal uncertainty that nonprofits and small providers face. It would also prevent a diversity of nonprofit and small content-sharing providers from potentially reaching a larger size, and result in strengthening the monopoly of the currently established providers, which could be an impediment to the right to science and culture as framed in Article 15 of the ICESCR.

It's well worth reading the whole thing. I don't know if this will have more resonance with the members of the EU Parliament's Legal Affairs Committee, but seeing as they keep brushing off or ignoring most people pointing out these very same points, one hopes that someone in Kaye's position will at least get them to think twice about continuing to support such a terrible proposal.

Filed Under: article 13, copyright, copyright directive, david kaye, eu, free speech, intermediary liability, monitoring, un, upload filters

UN Advisor Tells Italy To Drop Its Terrible 'Fake News' Law Before It Does Any Real Damage

from the assembly-line-for-vehicles-of-censorship dept

Italy is rolling out new laws to deal with "fake news." The Italian government can't define this term precisely, but apparently assumes it will know it when it sees it. And the rest of the country is encouraged to "see something, say something," thanks to the government's online portal which will allow brigaders and hecklers to cleanse the web of things they don't like. Even if some of it stays up, those reported will possibly still have to spend some time interacting with government employees, which will mostly be a waste of everyone's time.

And that's just the bureaucratic side of it. This portal will link to law enforcement so Italy's uniformed cyberwarriors can go harass citizens over alleged fakery the government can't even clearly define. There's nothing like settling discussions about factual misconceptions with shows of force from government reps.

Seeing as the problem will get a whole lot worse before it devolves into just another tool of government oppression, UN Special Rapporteur David Kaye has fired off a formal letter to the Italian government, asking it to nuke its plan to tackle fake news with armed officers and government mandates.

The letter [PDF] points out the Italian government is, in essence, criminalizing differences of opinion. That's not going to keep it in line with internationally-recognized human rights.

The Human Rights Committee has emphasized that “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint. Moreover, international human rights law provides States’ responsibility to ensure an environment in which a diverse range of political opinions and ideas can be freely and openly expressed and debated. Freedom of expression also includes sharing one’s beliefs and opinions with others who may have different opinions. In the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, my mandate together with other regional freedom of expression experts stressed that the “human right to impart information and ideas is not limited to “correct” statements, and “protects information and ideas that may shock, offend, and disturb”.

[...]

In light of these standards, the Joint Declaration on Freedom of expression and “Fake News” has concluded that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “nonobjective information” are incompatible and should be abolished.

Further driving this point home, Kaye states the cold hard fact that laws like these, however well-intended, end up being vehicles of a particular brand of censorship.

The lack of clarity concerning how the Protocol would operate, coupled with the threat of criminal sanctions, raises the danger that your Excellency’s Government will become arbiters of truth in the public and political domain. Accordingly, I am concerned that the Protocol would disproportionately suppress a wide range of expressive conduct essential to a democratic society, including criticism of the government, news reporting, political campaigning and the expression of unpopular, controversial or minority opinions.

Every law that curtails speech ends up being abused by the government that put it into effect. There are no exceptions. As is noted here, laws like these allow the government to decide what speech is acceptable using vague guidelines that effectively allow it to suppress dissent and criticism. There's no way to narrowly craft a law aimed at regulating a certain form of speech ("fake news") that has zero chance of ever being universally and concisely defined.

Filed Under: censorship, david kaye, fake news, italy, un

Europe's Ongoing Attack On Free Speech, And Why It Should Concern Us All

from the this-is-not-helping dept

David Kaye, a law professor who has also been the UN's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (quite the title!) has penned a very interesting article for Foreign Affairs (possibly behind a paywall or registration wall) about how Europe's recent attempts to regulate the internet are now a major threat to free speech. It talks about many issues we've written about, from the awful Right to be Forgotten cases to efforts to fine internet platforms if they don't magically disappear hate speech. While telling internet platforms to "fix it' may feel good, the reality is that it doesn't work, creates more problems, and gives those platforms even more power as the de facto speech police (something we should all be worried about). As Kaye writes:

In September of this year, the commission doubled down on these principles, adopting a formal communication that urges “online platforms to step up the fight against illegal content.” As with the right to be forgotten, the communication puts the companies themselves in the position of identifying, especially through the use of algorithmic automation, illegal content posted to their platforms. But, as Daphne Keller of Stanford’s Center for Internet and Society has argued, the idea that automation can solve illegal content problems without sweeping in vast amounts of legal content is fantasy. Machines typically fail to account for satire, critique, and other kinds of context that turn superficial claims of illegality into fully legitimate content. Automation thus involves a disproportionate takedown of legal content all to target a smaller amount of illegal material online. As a matter of law, as attorney and legal analyst Graham Smith noted, the commission process reverses the normal presumptions of legality in favor of illegality, with safeguards so weak that companies will likely err on the side of taking down content.

The communication expressly avoids the problem of disinformation and propaganda. But regulation of such content may also be on the horizon, as the commission has announced creation of a High-Level Group to address it. Even the staunchest promoters of freedom of expression in European politics recognize that disinformation is a major problem. Marietje Schaake, a Dutch member of the European Parliament and a leading proponent of respect for human rights in Europe, captured a widespread view on the continent when she said in parliamentary debate that she is “not reassured when Silicon Valley or Mark Zuckerberg are the de facto designers of our realities or of our truths.”  

He goes on to point out a number of other problematic attacks on free speech in the name of "regulating the internet" -- including the EU's attempt at copyright reform. He concludes by noting we should be very, very concerned about how this will play out for free speech:

These rules should concern anyone who cares about freedom of expression, as they involve limitations on European uses of online platforms. European policymakers have good faith reasons to advocate them, such as countering rampant abuse at a time of human dislocation, political instability, and rise of far-right parties. Yet the tools used often risk overregulation, incentivizing private censorship that could undermine public debate and creative pursuits. Companies may be forced into the position of facilitating practices that undermine their customers’ access to information. Europeans should be concerned, as many are.

Why should anyone else care? In the analog era, after all, a fair response in the United States to speech regulation across the pond (or anywhere else) might have been: that’s the way they do it in Europe. They have different experiences, giving some support (if very limited) to rules that U.S. courts would never permit—such as those against Holocaust denial or the glorification of terrorism.

But online space is different. All of the major companies operate at scale, and there is significant risk that troubling content regulations in Europe will seep into global corporate practices with an impact on the uses of social media and search worldwide. The possibility of global delinking of search results may be the most obvious form of content threat, but all of the rules and proposals noted above may slowly move to undermine freedom of expression. For instance, once a company invests the considerable funding required to develop sophisticated content filters for European markets, the barriers to applying them in American contexts are likely to come down.

There's much more in Kaye's piece and I highly recommend reading the whole thing.

One important point in all of this, which is noted in the quoted section above, but is worth repeating: most of the people pushing for these laws are not doing so with the intention of suppressing speech. Some may be doing so, but most of them really do have good intentions. The problem is that if you don't live in the world of free speech (or spend time watching how speech is stifled in various ways) it's often hard to realize how your "perfectly reasonable" attempt to stop some form of "bad" speech can be turned around and twisted, stretched and abused to silence all sorts of important speech. Even worse, it's very difficult for many people proposing these rules to comprehend that their attempts to, say, silence Nazis online, will almost certainly be used to silence the most vulnerable. Tools to suppress speech are frequently used against the powerless, especially when they try to speak out against the powerful.

The fact that so many new regulations in Europe (not to mention elsewhere) are being pushed with little concern for or regard to the wider impact on free expression should concern us all.

Filed Under: david kaye, eu, europe, free speech, gdpr, regulations, right to be forgotten, social media