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The Coalition for Creativity (C4C) is concerned about the developments around Article 17 in the European Media Freedom Act (EMFA). This provision, initially introduced as an unwarranted media privilege by the European Commission in the EMFA, is turning into a fully-fledged media exemption.

Our take on what policymakers should do: reject Article 17, this provision cannot be salvaged or improved and should hence be deleted. 

Hence, we are pleased to see that Renew Europe MEPs Monica Semedo (Luxembourg) and Anna Julia Donath (Hungary) tabled an amendment to delete Article 17 EMFA (see AM 967) to the draft EP Culture and Education (CULT) Committee EMFA report by Rapporteur by MEP Sabine Verheyen. They consider Article 17 EMFA should be deleted for numerous reasons, and highlight 3 of them:

1. equality of freedom of speech
2. harmonisation of horizontal rules
3. the issue of media declaration

Check C4C’s video above and infographic below on what’s wrong with Article 17 EMFA.

C4C considers that the DSA and the P2B Regulation suffice and believes that Article 17 raise multiple questions to solve a non-existent problem:

There should be no privilege: (1) for certain actors, as making some actors more important means the speech of others is automatically of less value; (2) for media, as this creates an easily exploitable loophole in the fight against disinformation; (3) for media on VLOPs as this creates a provision resting on the wrong scope at both ends; and (4) as such a privilege is extremely difficult to combine with the multiple other obligations platforms have.

The slippery slope from media privilege to media exemption/must-carry is a path that has already been clearly condemned by EU legislators in the recent DSA debates.

This concern is confirmed by a recent FT op-ed from Anika Collier Navaroli, a practitioner fellow at Stanford University’s Digital Civil Society Lab and a former senior content moderator at Twitter, on how ‘disinformation dangers lurk in the EU’s media freedom act’. She cautions that “the DSA’s attempt to address systemic risks such as disinformation may be undermined before they have a chance to work.”

More resources:

• See C4C’s Article 17 position. 

What’s Wrong with Article 17 EMFA – Infographic

Download image – PDF

At the end of February 2023, the European Commission launched a highly anticipated exploratory public consultation on “the future of the electronic communications sector and its infrastructure” that notably looks into the fair share / network fees debate – deadline: 19 May, midnight Brussels time (CEST).

C4C’s response to this consultation can be found here and below. Our answers are limited to ‘Section 4. Fair contribution by all digital players’ (see p. 36ff). Similar views have been expressed by various other stakeholders, including civil society.

Why it matters: This discussion, which has been mainly framed as Big Tech vs Big Telco, has a broader impact, as it risks negatively impacting net neutrality and turn Internet users, and other stakeholders, like startups, into collateral damage. For example, any cost increases for content providers are likely to be passed on to users, and any cost increases for major cloud providers will be passed on to their customers.

Along with over 40 organisations, C4C co-signed an open letter on the European Media Freedom Act (EMFA) addressed to the European Parliament.

These signatories call on the Members of the European Parliament involved in the debate to ensure that the EMFA will fulfill its potential and become a strong regulation establishing harmonised legal safeguards across Europe.

Media freedom and pluralism is the precondition of stable democracy and the rule of law.

What are some of the issues at stake?

• Many journalists throughout the EU find themselves in increasingly captured media markets, where independent voices are sidelined due to economic pressure;
• Journalists and media outlets struggle for financial viability;
• Critical media outlets are often vilified by politicians.;
• Access to financial resources is limited; and,
• Politically influenced media takeovers create an imbalanced media system.

The EMFA should address these issues and protect free media by outlining European standards on:

• freedom from editorial interference and illegal surveillance;
• guaranteeing media pluralism;
• providing greater #transparency on ownership and state financing;
• ending the abuse of state funds to create clientelist media;
• protecting the independence of public service media and the independence of national regulatory authorities; and,
• ensuring there is an economic environment in which independent journalism can flourish.

In this position paper, C4C expresses its believe that Articles 17 and 18 of the European Media Freedom Act (EMFA) cannot be salvaged or improved and should hence be deleted for the following reasons:

1. The DSA and the P2B Regulation suffice and there is no need for a specific media content
   moderation privilege: the DSA ink is barely dry, yet another unnecessary layer of complexity
   could get added with Article 17 of the EMFA and creating a narrower right applicable to less
   platforms than the P2B Regulation makes no sense.
2. Articles 17 and 18 of the EMFA raise multiple questions to solve a non-existent problem.
   There should be no privilege: (1) for certain actors, as making some actors more important
   means the speech of others is automatically of less value; (2) for media, as this creates an
   easily exploitable loophole in the fight against disinformation; (3) for media on VLOPs as this
   creates a provision resting on the wrong scope at both ends; and (4) as such a privilege is
   extremely difficult to combine with the multiple other obligations platforms have.
3. The introduction of these articles in the EMFA brings us back on the slippery slope from
   media privilege to media exemption/must-carry, a path that has already been clearly
   condemned by EU legislators.

Similar views have been expressed by a group of civil society organisations.

C4C shared this position in its response to the European Commission’s feedback opportunity on the EMFA proposal.

Following the presentation of the European Media Freedom Act by the European Commission on 13 September, the Coalition for Creativity (C4C) would like to express its concerns about a ‘media exemption’ popping-up again and the lack of proper transparency rules for the media industry.

Come-Back of the ‘Media Exemption’ (Article 17)

We believe that the treatment of media content by online platforms is a complex and sensitive issue that merits a proper debate and a thorough evaluation. Despite the clear rejection of the strong calls for a media exemption during the DSA and DMA debates, this demand is making its come-back through the EMFA, an instrument that clearly identifies media capture as a problem the EU is not spared  of. This risks having a detrimental impact on access to information and media pluralism, while possibly jeopardising the EU’s efforts against disinformation.

Ms Caroline De Cock, C4C Coordinator, said:

“Attributing new privileges to media organisations without awaiting the implementation and impact of the DSA provisions, would at the very best be premature and ill-thought, and at the very worst could open Pandora’s box of issues related to the identification of which media outlets would benefit from it as well as possible claims from other actors to benefit from similar privileges. One would hope all users can benefit from due process in content moderation.”

Missing Element: Strong Transparency

The proposal appears to be very light in terms of ensuring media ownership transparency, despite this being one of the crucial elements that civil society stakeholders have been calling for.

Ms Caroline De Cock, C4C Coordinator, said:

“Brussels has been big on transparency, so the failure to put forward a strong framework to unravel the financial streams in the media industry is disappointing. EU policymakers need to urgently facilitate the public scrutiny of these money flow seeing the media’s role as watchdog of democracy and in shaping the public opinion.”

On 2 September, C4C joined over 20 organisations in opposing the revised US Journalism Competition and Preservation Act (JCPA) and warning the US Congress against adopting this Act. The battles fought over issues such as the ‘link tax’ during the negotiations on the EU Directive on Copyright in the Digital Single Market (DCDSM) are popping up again in the context of the JCPA in the US. Just as during the DCDSM discussions we strongly oppose any attempts to curtail freedom of expression and access to information, and continue to believe that these misguided approaches fail to benefit and support smaller media outlets. See EFF’s campaign again the US link tax.

The full text of the letter can be found here and below.

Other relevant resources:

• Public Knowledge: 
  • 24 June, 2022 – Here We Go Again: Another Round of Changes Haven’t Solved the Problems with the JCPA
  • 18 April, 2022 – Not Big, If True: Congress’s Proposed Changes Fail to Solve the Fundamental Problems with the JCPA
  • JCPA Resources
• EFF: 29 June, 2022 – The Journalism Competition and Preservation Act Will Produce Neither Competition Nor Preservation
• Authors Alliance: 6 Sept, 2022 – Update: Authors Alliance Opposes the Revised Journalism Competition and Preservation Act
• Techdirt: 
  • 29 Aug, 2022 – Senator Klobuchar’s Latest Bad Idea: Letting Smaller Journalism Outlets Demand Payments For Links
  • 14 Jul, 2022 – The Journalism Competition Preservation Act Is Lose-Lose Legislation
  • 18 Jun, 2022 – Letting Newspapers Band Together To Demand Payments From Internet Companies Is Bad For The Internet And Bad For Journalism

Brussels, BELGIUM – Today, 26 April, the Court of Justice of the European Union (CJEU) issued its highly anticipated ruling (CJEU press release – judgement) in the case initiated in 2019 by the Polish government seeking the annulment of Article 17(4)(b) and (4)(c) of the Directive on Copyright in the Digital Single Market (DCDSM) (Case C-401/19).

The following statement can be attributed to Ms Caroline De Cock, Coalition for Creativity (C4C) coordinator:

“It is reassuring to see the attention the Court has given to the many safeguards put in place by the EU legislators in Article 17 in order to ensure the respect of the right to freedom of expression and information of users of platforms qualified as OCSSPs. This emphasis, as well as the reiteration of the general monitoring prohibition, must now be reflected in the national transpositions of Member States, which must deliver the fair balance between fundamental rights that the Court considers crucial for Article 17 to be deemed legal.”

C4C is a broad-based coalition that seeks an informed debate on how copyright can more effectively promote innovation, access, and creativity. C4C brings together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright.

For press inquiries on this please contact Ms De Cock at secretariat@coalition4creativity.org or +32 474 84 05 15.

[Note: We are still analysing the judgement and reserve the right to update.]

The CJEU ruling summarised in one image

Other relevant resources:

• Dr João Pedro Quintais (IViR, Amsterdam University): Twitter thread on the CJEU press release
• Prof Martin Husovec (LSE): Twitter thread giving a preliminary overview of the findings of the case
• Former MEP Felix Reda (GFF): Twitter thread highlighting the interplay of the ruling with the German and Austrian Article 17 implementations
• Former MEP Felix Reda (GFF) & Paul Keller (IViR, Amsterdam University): Kluwer Copyright Blog analysis
• COMMUNIA: Twitter thread & blog post analysing the judgement + Video recording of the COMMUNIA Salon on the decision
• Creative Commons: Blog post analysing the judgement
• EFF: Blog post reflecting on the ruling
• EDRi: Blog post on what’s next after the judgement

Following the political agreement reached between the EU institutions during the 5^th and final trilogue negotiations on the Digital Services Act (DSA) on 22-23 April, the Coalition for Creativity (C4C) would like to express its initial disappointment about potential pitfalls in this regulation.

Ms Caroline De Cock, C4C Coordinator, said:

“The DSA political agreement lacks user safeguards and continues to push vague concepts open to dangerous misinterpretations. The pursuit of a quick deal under the French Council Presidency, ahead of the 2^nd round of the Presidential elections, at the expense of upholding fundamental rights is questionable at best and counterproductive at worst.

Last minute attempts by certain stakeholders to transform search engines in dangerous censorship tools were thankfully deflected, even though one has to wonder how these repeated jabs at freedom of speech are even allowed to pop up.

Once again, users have been left out and sidelined in a debate on important concepts, such a preserving their freedom of expression and access to information online. One can only hope that the DSA will not end up empowering less democratic regimes to exercise control over the speech of citizens outside of their Member State borders.

The EU has once more failed in truly stepping up to the plate in its role as a global actor and a guardian of fundamental rights. One can only fear the ripple effects the DSA will have on the policy agendas of other geographies, as has been notably evidenced following the adoption of the Directive on Copyright in the Digital Single Market and national legislation, such as the German NetzDG.

This is notably the case with the introduction of a crisis mechanism that could potentially be easily misused.

The expected compliance burden will be so high that the DSA risks consolidating Big Tech’s position to the detriment of smaller players, annihilating any positive market effects stemming from the DMA.

It remains to be seen if the SME exemption recognizes the need to recognizes the need to handle not-for-profit players, such as educational and scientific repositories, digital archives and libraries, differently, or merely creates a gaping loophole to the sole benefit of commercial entities.

Finally, C4C believes that in fine-tuning and applying the rules in practice, the European Commission and national regulators will need to ask and listen to the input of civil society, especially as it pertains to key fundamental rights such as freedom of speech and access to information.”

On 19 April, Eva Simon, senior advocacy officer at the Civil Liberties Union for Europe (Liberties), and Caroline De Cock, C4C Coordinator, co-wrote an op-ed published on EURACTIV on the problems surrounding filtering ahead of the crucial and determining 5th trilogue on the Digital Services Act (DSA) on 22 April 2022. The op-ed has also been translated in German by EURACTIV. Highlighted quotes below.

Liberties (@LibertiesEU) is a European network of independent non-governmental organisations which aims to safeguard the human rights of everyone in the European Union. 

The Coalition for Creativity (@_C4C_) brings together libraries, scientific and research institutions, digital rights groups, technology businesses, and educational and cultural heritage institutions that share a common view on copyright. 

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Ukraine: The DSA cannot let filters blind us to war crimes

The Digital Services Act (DSA) must protect our rights by including meaningful safeguards to uphold the fundamental rights of internet users, especially for those engaged in the indispensable work of documenting war crimes. 

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

In the case of the Syrian Archive, inaccurate automated tools removed the videos because these lacked understanding of linguistic or cultural nuances, and could not differentiate between journalistic resources and war propaganda. That contextual blindness still exists in today’s automated content moderation tools, and they still lead to situations where completely legitimate content is wrongfully made inaccessible.

We must learn from these mistakes, and ensure that journalists, activists, or anyone else can share their opinions or (video) evidence without the threat of it disappearing, simply because online platforms are coerced into implementing poorly working automation tools.

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA requires Big Tech companies to introduce risk analysis to predict and mitigate the negative effects on the exercise of fundamental rights, such as privacy, free speech, the prohibition of discrimination or the rights of minors. This should not be interpreted as requiring the mandatory use of automation.

Similarly, under no circumstances should co-regulatory measures such as the Code of Practice on disinformation impose pressure on online platforms to remove content so swiftly that it would necessitate the intensified deployment of automated tools.  

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA must protect our rights by including meaningful safeguards to uphold the fundamental rights of internet users. It must also maintain the prohibition of general monitoring obligations, let that be automated or non-automated. Also, it should certainly not impose, either directly or implicitly, the use of mandatory upload filters or other content moderation automation.​​

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA must preserve users’ privacy online and the continued prohibition against general monitoring by online platforms is an essential element thereof. In parallel, the ability to use the internet anonymously and through encrypted services offers crucial safeguards against monitoring. Such safeguards are in the text proposed by the European Parliament but now need to be embraced by the Council too. 

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

The DSA is going through the final stages of the trilogue negotiations. As the European Parliament rightfully recognizes in its mandate, it is crucial to prohibit the mandatory use of upload filters. Such prohibition is the only way to avoid disproportionate limitations on access to information, freedom of expression and personal data protection.

Caroline De Cock & Eva Simon – ‘Ukraine: The DSA cannot let filters blind us to war crimes‘ (EURACTIV, 19 April 2022)

In March 2022, C4C contributed to the International treaty examination of the UK-NZ Free Trade Agreement (FTA).

Our key message: Extending copyright protection with 20 years, going from life plus 50 years to life plus 70 years, blatantly neglects evidence demonstrating the lasting and irreversible negative direct and indirect effects of such an extension.