Guiding the Blind Bloodhounds: How to Mitigate the Risks art. 17 of Directive 2019/790 Poses to the Freedom of Expression

Abstract

Following the long months of a difficult legislative process, Directive 2019/970 (DSMCD) was adopted on the 15th of April 2019. One of the key provisions responsible for the difficulties in question is art. 17 (previously 13), providing the foundation for content filtering to be regulated and endorsed by EU copyright law. In both the time available before the national implementation date, as well as once the provision is live, it is crucial to examine art. 17 closely, in order to ensure the Directive meets its legitimate aims, without causing undue side effects. And where this is not directly possible, it’s crucial to balance the involved interests adequately, in order to clearly and consciously accept certain trade-offs.

And that is exactly what the paper seeks to do in relation to the enforcement schemes warranted by art. 17 of the DSMCD Directive and freedom of expression, by analysing risks the former poses to the latter, as well assessing the degree to which it mitigates them. This is without undermining the fact that ensuring the Directive helps in reducing copyright infringement is a positive human rights outcome in itself, helping to protect the right to property, in its form of intellectual property; in line with art. 17(2) of the Charter of Fundamental Rights of the EU.

The described exercise however, is not conducted in a vacuum; with the stakeholder dialogues prescribed by the Directive and the implementation date growing closer, the article seeks to inform the national legislators on the challenges they are going to encounter, not only in preparing the national approach to art. 17, but also in honing it afterwards. To this end, the following structure is embraced.

Section 2 of the paper outlines the concept of content filtering, explaining how it functions on a technical level, and what prevailing form it currently embraces in the world of online copyright enforcement. Section 3 moves onto the DSMCD, outlining the key elements of art. 17 and the regime it sets out. Section 4 looks at the nature of the risks posed by the discussed provision to the freedom of expression, arguably the key interest vulnerable to interference by art. 17. Section 5 critically analyses the steps taken by the drafters of the Directive to mitigate the risks outlined in section 4, and proposed further solutions with this goal in mind. Next, section 6 looks at two broader aspects of art. 17 implementation, which could have a positive effect on the overall balancing of human rights involved. Finally, section 7 concludes the article.