Today, the European Court of Justice declared the obligation on social networks to prevent copyright violations by using ex-ante upload filters (Article 17 of the Copyright Directive) compatible with fundamental rights, but imposed very strict conditions. Member of the European Parliament Patrick Breyer, member of the German Pirate Party that led the protests of hundreds of thousands against upload filters in 2019, comments:

“Today’s ruling goes a long way to accomodate the protest voiced by hundreds of thousands who took to the streets against error-prone censorship machines and for freedom of expression online. It is a valuable partial success. The upload filtering mechanisms used to date by corporations such as Facebook or Google do not meet these high standards, which is why I am calling for them to be shut down. In addition, the implementation of the Copyright Directive in EU countries will now need to be revised following the German model which seeks to protect legal uses of copyrighted information – for example in the context of a quote. And finally, today’s ruling should still be incorporated into the new EU Digital Services Act, which is what I will propose today.”

To protect freedom of expression, today’s ruling by the European Court of Justice places strict conditions on upload filters that can hardly be met by the current unreliable filtering algorithms: Technologies “that filter and block legal content during upload” are excluded (para. 85 of the judgment). “A filtering system that may not sufficiently distinguish between illegal and legal content, so that its use could lead to the blocking of communications containing legal content, [would be] incompatible with the right to freedom of expression and information guaranteed by Article 11 of the Charter” (para. 86 of the judgment). The filtering obligation does not apply to content the legal assessment of which “would require an independent evaluation of the content” (para. 90 of the judgment).

Breyer explains: “Even a seemingly ‘insignificant’ error rate of the censorship algorithms of, for example, 0.1% leads to the unjustified censorship of thosands of valuable publications due to the large number of Internet posts, and causes massive damage. For example, no algorithm can reliably determine whether an uploader has a license to a piece of content or not. Because fully automated upload filters cannot technically meet the reliability requirements of today’s ruling, the upload filter obligation pushed through by the copyright lobby was a huge mistake and should be abolished. We Pirates will carry on the fight against censorship machines!”

Judgment of the ECJ (French)

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After 16 hours of discussion, negotiators from the European Parliament and EU governments have just made deal on a new EU Digital Services Act. Pirate Party MEP Patrick Breyer sat at the negotiating table as Rapporteur for the Committee on Civil Liberties (LIBE) and summarises:

“We were able to prevent removal obligations for search engines. We could also prevent the indiscriminate collection of the cell phone numbers of all uploaders to adult platforms, which would have endangered their privacy and the safety of sex workers due to foreseeable data hacks and leaks. Minors will be protected from surveillance advertising on online platforms. However, the ban on using sensitive personality traits (e.g. a person’s political opinion, diseases or sexual preferences) for targeted manipulation and targeting was heavily watered down.” The new rules on personalised targeting will apply to all online platforms for sharing user content such as Facebook, Instagram or eBay, but not to sites hosting self-generated content, such as news websites.

“The new set of rules as a whole does not deserve the name ‘Digital Constitution’. The disappointing outcome fails in multiple respects to protect our fundamental rights online. Our online privacy will not be protected by a right to use digital services anonymously, nor by a right to encryption, a ban on data retention, or a right to generally opt-out of surveillance advertising in your browser (do not track). Freedom of expression on the Internet is not protected from error-prone censorship machines (upload filters), nor from arbitrary platform censorship. Cross-border removal orders issued by illiberal member states without a court order can take down media reports and information that is perfectly legal in the country of publication. The monopoly power of consumer-hostile social media like Facebook, Instagram and Twitter will not be tackled by interoperability obligations. Users will have no alternative to the toxic engagement-based corporate algorithms that spread hate, violence and misinformation in the interest of commercial profits. Industry and government interests have unfortunately prevailed over digital civil liberties.”

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On Friday, representatives of the EU Parliament, Commission and Council will meet for what is expected to be the last round of negotiations on the EU Digital Services Act (DSA). After MEPs from the Pirate Party were able to successfully make important contributions to the protection of the privacy of users in the parliamentary position, it will now be decided where the EU governments under the leadership of the French Council Presidency are willing to go along.

The MEP of the Pirate Party and digital freedom fighter Dr. Patrick Breyer sits as rapporteur for the LIBE Committee at the negotiating table in Brussels and explains:

“The final negotiations will decide central issues of fundamental rights protection on the net: If the French Council Presidency wants to protect digital freedom of expression and ensure online documentation of Rus-sian war crimes, for example, error-prone upload filters must not be mandatory. If EU governments want to stop foreign spying and defend Europe’s digital sovereignty, there is no way around a right to secure encryp-tion. And if President Macron really wants to enforce our fundamental rights against the surveillance capita-list power of global internet corporations, citizens must be able to protect themselves from annoying consent banners and ubiquitous surveillance ads via “do not track” settings!”

Pirate Party MEP Mikuláš Peksa, DSA rapporteur in the Committee on Economic on Monetary Affairs (ECON), adds:

„It is essential that no unnecessarily restrictive rules will be included in the new law. Users must still have free access to services on the internet. Moreover, the negotiated agreement should, above all, support small and medium-sized European companies, which can bring much innovation to the market. The Pirates’ aim is also to ensure secure encryption of our private electronic communication, which is crucial for safe-guarding our fundamental rights online.”

Before the final vote in the EU Parliament in January 2022, the four Member of the Pirate Party in the European Parliament were able to make important contributions in some points to improve user privacy. Here‘s some exampes of the European Parliament‘s demands in the negotiations:

Upload filters

The Parliament had learned from the protests against Article 13/17 of the Directive on Copyright in the Digital Single Market and wants to exclude additional filter obligations in the law on digital services. The error-prone “censorship machines” often delete video documentaries of Russian war crimes, for example, as alleged terrorism propaganda.

Encryption

The Parliament made a commitment: the right to secure encryption is to be guaranteed in the DSA. This is to prevent individual EU states from single-handedly forcing securely encrypted global Internet services to introduce backdoors.

Surveillance advertising

Although the systematic monitoring and creation of personality profiles of Internet users for advertising purposes was not demanded by Parliament, users should for the first time be able to generally refuse tracking in the browser or app (“do not track”) and thus also be spared annoying consent banners. It should be just as easy to refuse consent as it is to give it (ban on dark patterns). In addition, targeting people based on their political views, health status, sexual preferences or religious beliefs should be prohibited.

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