#CopyrightWeek – Copyright and Free Speech: the rise of shadow regulation or how to let private companies decide what goes and stays on the Internet

#CopyrightWeek – Copyright and Free Speech: the rise of shadow regulation or how to let private companies decide what goes and stays on the Internet

The theme of today’s #Copyrightweek is ‘Copyright and Free Speech’. The idea is to tell policy makers that freedom of speech is fundamental to democratic systems and that copyright should promote, not restrict or suppress, free speech.

Obvious, no?

Well, actually, not obvious at all, if you look at the copyright creep that has occurred through legislation and ‘moral pressure’ applying all over the Internet. The phenomenon has been identified by the Electronic Frontier Foundation (EFF) as ‘Shadow Regulation‘ and extends beyond the realm of copyright.

Iit basically pertains to the policing of the Internet by private companies, either:

  • at their own initiative;
  • under friendly ‘duress’ of others; or,
  • as a result of legislation that make companies run the risk of being liable ‘if they do not intervene’.

These types of more or less coerced interventions can be found in multiple areas these days (hate speech, terrorist content, rogue pharmacies and the recently popular ‘fake news’ tag), but certainly have been a constant feature in copyright discussions, both in the EU and in other geographies (remember SOPA/PIPA?).

This tendency to push the handling of complex issues on the back of private companies (and thus outside the realm of the law) has recently emerged with a vengeance in the European Commission’s (EC) proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (DSM) [2016/0280(COD) – COM(2016)593/F1] currently under discussion in the European Parliament and in the Council of the EU.

In this text, Article 13 stands out as a bit of an oddity, as it actually deals with matters that most digital rights lawyers would expect to see included in other legal instruments, such as the IPR Enforcement Directive or the Ecommerce Directive. The issue at stake is indeed that of the liability of information society service providers (such as online platforms) for content uploaded by their users and that could infringe copyright, packaged under the label ‘sharing of value’.

1. Article 13 as privatised censorship of all content by an undefined number of online companies following an undefined procedure

There are so many loose and dangerous ends in the proposed Article 13, that we have tried to summarize them in the table below:

The text proposed by the European Commission

What does this mean in practice?

Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall,


Online players that store large amounts of user uploaded content can cover a lot of very different type of players, ranging from commercial platforms to non-profits and can cover all types of hosted content ranging from:

·         videos (YouTube, Vimeo, Daily Motion),

·         blogs (Tumblr, WordPress),

·         crowdsourced information (Wikipedia),

·         social media (Facebook, Twitter),

·         documents (DropBox, Google Drive),

·         pictures (Flickr), etc. 


This covers all sorts of creations, ranging from literary works, music, choreographies, pantomimes, pictures, graphics, sculptures, sound recordings, architectural works, etc..

→ So this is not confined to Content ID type softwares used on YouTube, which only scan music and video uploads to identify copyright infringements.

It covers also content uploaded by a user who is the rightholder of that content or who has the right to do so under an exception or limitation under EU law, as there is no mention of the fact the content has been uploaded there rightfully or not.

in cooperation with rightholders,


Rightholders covers a vast reality ranging from big labels or the Hollywood studios to every individual creator if he has not signed away his rights. This is a lot of people to sit around a table and ‘cooperate’ with, especially if you are a smaller company that would prefer to hire engineers than lawyers. Online companies could have to deal with thousands of claimants all wanting a share of their revenues, or simply face the prospect of such interactions and hence have a less attractive business case to defend before investors.

Collecting societies could maybe be used to decrease the number of stakeholders involved, but they are not always known as smooth negotiators and do not necessarily represent the interests of all rightholders.


What does that even mean when your interests are not necessarily aligned? And where are the users in this relationship?

take measures


to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter

To do what?

The obligation here is to comply with an agreement of the rightholder, regardless if that agreement relates to actual copyright infringements or not. It also implies that online platforms ‘use’ the works that are uploaded by their Internet users, a qualification which is not that clear-cut from a legal point of view and is aimed at pretending they are not just ‘hosting’ the material.



to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.

The works and other subject matters to be ‘filtered’ are those identified by rightholders. How that identification occurs is not stated, nor how claims of rights are checked (it is not unusual for several people to claim they have the rights over the same work, and in some cases, all of their claims are true).

Those measures,


such as the use of effective content recognition technologies,

This language seems to point directly towards the type of ContentID software used by YouTube, even though the scope of what needs to be recognized goes dramatically beyond what ContentID is capable of handling.

Moreover, such automated tools can only match a file to another, and do not have the capability to recognize more complex issues, such as the fact that whilst a copyright protected file might have been used by a user, it does not infringe the rightholder’s copyright as it falls under an exception recognised by law (for example, parody).

shall be appropriate and proportionate.



Not really. Seeing all of these measures will be (1) decided by private companies and (2) fall under the terms and conditions of the websites, the ‘appropriate and proportionate’ nature of the implemented measures is left to the appreciation of those private companies, with no control by judicial or administrative instances, nor by consumer representatives. This interpretation seems confirmed by Recital 39 of the proposed Directive.

The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as,


when relevant,

Who will judge relevance? The rightholders is our best guess.

adequate reporting on the recognition and use of the works and other subject-matter.

So aside from investing money into censorship tools, online companies must also make sure they come up with reports to please the rightholders.

2. How Article 13 is in direct contradiction with Freedom of speech principles and other rules enshrined in EU law

So why did the European Commission decide to take this approach of ‘forced voluntary agreements’ between online platforms and rightholders? Because if they proposed an actual legal provision that mandates these same online platforms to scan content uploaded by users, they would be infringing existing European rules ( notably Articles 14 and 15 of the Directive 2000/31 on electronic commerce, also referred to as the E-commerce Directive, which prohibit general monitoring obligations to be imposed on hosting providers), the EU Charter of Fundamental Rights (notably Articles 8 and 11 which relate to freedom of expression and access to information as well as privacy) and established case law by the Court of Justice of the European Union (CJEU), as set out by EDRi.

But you don’t have to trust us on this: this is the view of many academics working on copyright legal issues, as demonstrated by:

  • a paper co-authored by several of them and titled ‘A brief exegesis of the proposed Copyright Directive’, which politely concludes that ‘A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including Court of Justice of the European Union case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts’.
  • the blog post and presentation given on 11 January 2017 by Dr Christina Angelopoulos at the EPP Hearing on Copyright at the European Parliament, as neatly summarized below by the slide she projected at the venue.

Surely, that is a clear message?

Conclusion: ‘Free speech: only as strong as the weakest link’ (EFF)

Source: EFF – Free speech only as strong as the weakest link –

The expression ‘Free speech is only as strong as the weakest link’ was used by the Electronic Frontier Foundation in a 2011 blog post accompanying a dynamic interface that maps out the relationships between users, intermediary services and other users on the Internet.

The reason for which they did this has never been more actual than today:

One of the key pressures on free speech weak links comes from back-room agreements with the companies that operate at each level—which we call Shadow Regulation.

‘(…) The Internet has delivered on its promise of low-cost, distributed, and potentially anonymous speech. Reporters file reports instantly, citizens tweet their insights from the ground, bloggers publish to millions for free, and revolutions are organized on social networks. But the same systems that make all of this possible are dangerously vulnerable to chokeholds that are just as cheap, efficient, and effective, and that are growing in popularity. Understanding these weak links is the first step toward making them stronger.

As the European Commission proposal tries to poke holes into the the free speech chain, we encourage the Members of the European Parliament and the representatives of the governments of the Member States to make each of the links stronger, and to reject the institutionalized backroom deals Article 13 is trying to push down the throat of the Internet and its users.


We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.