This is not just another post on the proposed Copyright Directive released on 14 September 2016 (Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market discussed in my previous post here) and others hard and/or soft law initiatives coming from the European Commission (see for example Proposal for a Directive amending the Audiovisual Media Services Directive discussed here, the EU Internet Forum against Terrorism or the Code of Conduct on Countering Illegal Hate Speech Online).
This is an open call to ask law-makers, and in particular EU law makers, to think again about the meanings and implications of key regulatory concepts such as the concept of general monitoring.
Article 15 of the E-commerce Directive provides, in its first paragraph, that:
“Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.”
Why having included Article 15 in the E-commerce Directive… in the first place?
The pragmatists [or the idealists?] might answer that the E-commerce Directive was [the past tense is used on purpose] an early attempt to regulate the Internet industry and to create a competitive digital market. Fortunately or unfortunately [I am not sure anymore] this time is over, the market has matured, and a new regulatory strategy is therefore needed; a strategy that should take into account technological evolutions.
Moreover, the pragmatists continue, such a new strategy is all the more justified since once the monitoring of ICT platforms is automated it can never amount to general monitoring within the meaning of Article 15(1) of the E-commerce Directive. Automated monitoring can only be a type of special monitoring. In other words, filtering communications for the purposes of detecting lists of hashes or fingerprints or URLs corresponding to certain types of content does not mean that all types of illegal content are looked for.
But if we are only dealing with a type of special monitoring, then it is possible to add one special monitoring obligation after the other, isn’t it? And if it can be done for copyright infringements, why not doing it for other types of illegal content? Why not doing it for many different types of illegal content?
Why is this approach problematic? For the same reason that it is problematic to sustain that in the modern online environment there is no such thing as mass surveillance, as it is all targeted surveillance now. These “word games” [denounced by many including the EFF here] are dangerous in as much as they are meant to make legal challenges disappear by a subtitle change of legal qualifications.
The generalisation of automated monitoring is a shift of paradigm, even if its stated goal is, first and foremost, to (“simply”) make law enforcement possible. Automated monitoring has very little to do with special monitoring as envisaged by Article 15(2) of the E-commerce Directive, which is essentially concerned about the transfer of information from providers of intermediary services to competent authorities including law enforcement agencies, and, in particular, the transfer of information enabling the identification of Internet users.
Either the distinction drawn between general and special monitoring obligations is not helpful and should be abandoned or/and it may now be necessary to distinguish between a strong principle of prohibition of general monitoring obligations and a few [i.e. a limited number of] exceptions, which would need to be narrowly construed, pursue a legitimate aim, be based on clear and foreseeable legal grounds and always proportionate, as Article 15(1) of the E-commerce Directive is a means to ensure that the rights to privacy, data protection and freedom of expression of Internet users are effectively protected. In this sense, Article 52 of the EU Charter of Fundamental Rights could prove to be particularly useful.