How the EU Outsources the Task of Human Rights Protection to Platforms and Users: The Case of UGC Monetization external link

Senftleben, M., Quintais, J. & Meiring, A.
Berkeley Technology Law Journal, vol. 38, iss. : 3, pp: 933-1010, 2024

Abstract

With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same – highly problematic – approach. Against this background, the paper discusses the weakening – and potential loss – of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.

Artificial intelligence, Content moderation, Copyright, derivative works, discrimination, Freedom of expression, Human rights, liability, proportionality, user-generated content

Bibtex

Article{nokey, title = {How the EU Outsources the Task of Human Rights Protection to Platforms and Users: The Case of UGC Monetization}, author = {Senftleben, M. and Quintais, J. and Meiring, A.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4421150}, year = {2024}, date = {2024-01-23}, journal = {Berkeley Technology Law Journal}, volume = {38}, issue = {3}, pages = {933-1010}, abstract = {With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same – highly problematic – approach. Against this background, the paper discusses the weakening – and potential loss – of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.}, keywords = {Artificial intelligence, Content moderation, Copyright, derivative works, discrimination, Freedom of expression, Human rights, liability, proportionality, user-generated content}, }

Generative AI and Author Remuneration

IIC, vol. 54, pp: 1535-1560, 2023

Abstract

With the evolution of generative AI systems, machine-made productions in the literary and artistic field have reached a level of refinement that allows them to replace human creations. The increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic output much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Considering this trend, the question arises whether it is advisable to take measures to compensate human authors for the reduction in their market share and income. Copyright law could serve as a tool to introduce an AI levy system and ensure the payment of equitable remuneration. In combination with mandatory collective rights management, the new revenue stream could be used to finance social and cultural funds that improve the working and living conditions of flesh-and-blood authors.

collective rights management, Copyright, Freedom of expression, text and data mining, three-step test

Bibtex

Article{nokey, title = {Generative AI and Author Remuneration}, author = {Senftleben, M.}, doi = {https://doi.org/10.1007/s40319-023-01399-4}, year = {2023}, date = {2023-11-07}, journal = {IIC}, volume = {54}, pages = {1535-1560}, abstract = {With the evolution of generative AI systems, machine-made productions in the literary and artistic field have reached a level of refinement that allows them to replace human creations. The increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic output much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Considering this trend, the question arises whether it is advisable to take measures to compensate human authors for the reduction in their market share and income. Copyright law could serve as a tool to introduce an AI levy system and ensure the payment of equitable remuneration. In combination with mandatory collective rights management, the new revenue stream could be used to finance social and cultural funds that improve the working and living conditions of flesh-and-blood authors.}, keywords = {collective rights management, Copyright, Freedom of expression, text and data mining, three-step test}, }

Using Terms and Conditions to apply Fundamental Rights to Content Moderation

German Law Journal, 2023

Abstract

Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.

Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions

Bibtex

Article{nokey, title = {Using Terms and Conditions to apply Fundamental Rights to Content Moderation}, author = {Quintais, J. and Appelman, N. and Fahy, R.}, doi = {https://doi.org/10.1017/glj.2023.53}, year = {2023}, date = {2023-07-11}, journal = {German Law Journal}, abstract = {Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.}, keywords = {Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions}, }

Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights external link

McGonagle, T. & Voorhoof, D.
European Audiovisual Observatory, 2023, Strasbourg, Edition: 8th , ISBN: 9789287184351

Abstract

This e-book provides valuable insights into the European Court of Human Rights’ extensive case-law on freedom of expression and media and journalistic freedoms. The first seven editions of the e-book (2013, 2015, 2016, 2017, 2020, 2021 and 2022) have proved hugely successful. The new seventh edition summarises over 378 judgments or decisions by the Court and provides hyperlinks to the full text of each of the summarised judgments or decisions (via HUDOC, the Court's online case-law database).

Freedom of expression, Journalism, Media law

Bibtex

Book{nokey, title = {Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights}, author = {McGonagle, T. and Voorhoof, D.}, url = {https://rm.coe.int/iris-themes-vol-iii-8th-edition-april-2023-/1680ab1d11}, year = {2023}, date = {2023-04-24}, abstract = {This e-book provides valuable insights into the European Court of Human Rights’ extensive case-law on freedom of expression and media and journalistic freedoms. The first seven editions of the e-book (2013, 2015, 2016, 2017, 2020, 2021 and 2022) have proved hugely successful. The new seventh edition summarises over 378 judgments or decisions by the Court and provides hyperlinks to the full text of each of the summarised judgments or decisions (via HUDOC, the Court\'s online case-law database).}, keywords = {Freedom of expression, Journalism, Media law}, }

The right to encryption: Privacy as preventing unlawful access external link

Computer Law & Security Review, vol. 49, 2023

Abstract

Encryption technologies are a fundamental building block of modern digital infrastructure, but plans to curb these technologies continue to spring up. Even in the European Union, where their application is by now firmly embedded in legislation, lawmakers are again calling for measures which would impact these technologies. One of the most important arguments in this debate are human rights, most notably the rights to privacy and to freedom of expression. And although some authors have in the past explored how encryption technologies support human rights, this connection is not yet firmly grounded in an analysis of European human rights case law. This contribution aims to fill this gap, developing a framework for assessing restrictions of encryption technologies under the rights to privacy and freedom of expression as protected under the European Convention of Human Rights (the Convention) and the Charter of Fundamental rights in the European Union (the Charter). In the first section, the relevant function of encryption technologies, restricting access to information (called confidentiality), is discussed. In the second section, an overview of some governmental policies and practices impacting these technologies is provided. This continues with a discussion of the case law on the rights to privacy, data protection and freedom of expression, arguing that these rights are not only about ensuring lawful access by governments to protected information, but also about preventing unlawful access by others. And because encryption technologies are an important technology to reduce the risk of this unlawful access, it is then proposed that this risk is central to the assessment of governance measures in the field of encryption technologies. The article concludes by recommending that states perform an in-depth assessement of this when proposing new measures, and that courts when reviewing them also place the risk of unlawful access central to the analysis of interference and proportionality.

communications confidentiality, encryption, Freedom of expression, Human rights, Privacy, unlawful access

Bibtex

Article{nokey, title = {The right to encryption: Privacy as preventing unlawful access}, author = {van Daalen, O.}, url = {https://www.sciencedirect.com/science/article/pii/S0267364923000146}, doi = {https://doi.org/10.1016/j.clsr.2023.105804}, year = {2023}, date = {2023-05-23}, journal = {Computer Law & Security Review}, volume = {49}, pages = {}, abstract = {Encryption technologies are a fundamental building block of modern digital infrastructure, but plans to curb these technologies continue to spring up. Even in the European Union, where their application is by now firmly embedded in legislation, lawmakers are again calling for measures which would impact these technologies. One of the most important arguments in this debate are human rights, most notably the rights to privacy and to freedom of expression. And although some authors have in the past explored how encryption technologies support human rights, this connection is not yet firmly grounded in an analysis of European human rights case law. This contribution aims to fill this gap, developing a framework for assessing restrictions of encryption technologies under the rights to privacy and freedom of expression as protected under the European Convention of Human Rights (the Convention) and the Charter of Fundamental rights in the European Union (the Charter). In the first section, the relevant function of encryption technologies, restricting access to information (called confidentiality), is discussed. In the second section, an overview of some governmental policies and practices impacting these technologies is provided. This continues with a discussion of the case law on the rights to privacy, data protection and freedom of expression, arguing that these rights are not only about ensuring lawful access by governments to protected information, but also about preventing unlawful access by others. And because encryption technologies are an important technology to reduce the risk of this unlawful access, it is then proposed that this risk is central to the assessment of governance measures in the field of encryption technologies. The article concludes by recommending that states perform an in-depth assessement of this when proposing new measures, and that courts when reviewing them also place the risk of unlawful access central to the analysis of interference and proportionality.}, keywords = {communications confidentiality, encryption, Freedom of expression, Human rights, Privacy, unlawful access}, }

Fundamental rights assessment of the framework for detection orders under the CSAM proposal download

CSAM, Data protection, Freedom of expression, Privacy

Bibtex

Report{nokey, title = {Fundamental rights assessment of the framework for detection orders under the CSAM proposal}, author = {van Daalen, O.}, url = {https://dev.ivir.nl/publications/fundamental-rights-assessment-of-the-framework-for-detection-orders-under-the-csam-proposal/csamreport/}, year = {2023}, date = {2023-04-22}, keywords = {CSAM, Data protection, Freedom of expression, Privacy}, }

Outsourcing Human Rights Obligations and Concealing Human Rights Deficits: The Example of Monetizing User-Generated Content Under the CDSM Directive and the Digital Services Act external link

Senftleben, M., Quintais, J. & Meiring, A.

Abstract

With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same – highly problematic – approach. Against this background, the paper discusses the weakening – and potential loss – of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.

Artificial intelligence, Content moderation, Copyright, derivative works, discrimination, Freedom of expression, Human rights, liability, user-generated content

Bibtex

Online publication{nokey, title = {Outsourcing Human Rights Obligations and Concealing Human Rights Deficits: The Example of Monetizing User-Generated Content Under the CDSM Directive and the Digital Services Act}, author = {Senftleben, M. and Quintais, J. and Meiring, A.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4421150}, year = {}, date = {DATE ERROR: pub_date = }, abstract = {With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same – highly problematic – approach. Against this background, the paper discusses the weakening – and potential loss – of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.}, keywords = {Artificial intelligence, Content moderation, Copyright, derivative works, discrimination, Freedom of expression, Human rights, liability, user-generated content}, }

SLAPPed by the GDPR: protecting public interest journalism in the face of GDPR-based strategic litigation against public participation

Journal of Media Law, vol. 14, iss. : 2, pp: 378-405, 2022

Abstract

Strategic litigation against public participation is a threat to public interest journalism. Although typically a defamation claim underpins a SLAPP, the GDPR may serve as an alternative basis. This paper explores how public interest journalism is protected, and could be better protected, from abusive GDPR proceedings. The GDPR addresses the tension between data protection and freedom of expression by providing for a journalistic exemption. However, narrow national implementations of this provision leave the GDPR open for abuse. By analysing GDPR proceedings against newspaper Forbes Hungary, the paper illustrates how the GDPR can be instrumentalised as a SLAPP strategy. As European anti-SLAPP initiatives are finetuned, abusive GDPR proceedings need to be recognised as emerging forms of SLAPPs, requiring more attention to inadequate engagement with European freedom of expression standards in national implementations of the GDPR, data protection authorities’ role in facilitating SLAPPs, and the chilling effects of GDPR sanctions.

Data protection, Freedom of expression, GDPR, journalistic exemption, SLAPPS

Bibtex

Article{nokey, title = {SLAPPed by the GDPR: protecting public interest journalism in the face of GDPR-based strategic litigation against public participation}, author = {Rucz, M.}, doi = {https://doi.org/10.1080/17577632.2022.2129614}, year = {2022}, date = {2022-10-10}, journal = {Journal of Media Law}, volume = {14}, issue = {2}, pages = {378-405}, abstract = {Strategic litigation against public participation is a threat to public interest journalism. Although typically a defamation claim underpins a SLAPP, the GDPR may serve as an alternative basis. This paper explores how public interest journalism is protected, and could be better protected, from abusive GDPR proceedings. The GDPR addresses the tension between data protection and freedom of expression by providing for a journalistic exemption. However, narrow national implementations of this provision leave the GDPR open for abuse. By analysing GDPR proceedings against newspaper Forbes Hungary, the paper illustrates how the GDPR can be instrumentalised as a SLAPP strategy. As European anti-SLAPP initiatives are finetuned, abusive GDPR proceedings need to be recognised as emerging forms of SLAPPs, requiring more attention to inadequate engagement with European freedom of expression standards in national implementations of the GDPR, data protection authorities’ role in facilitating SLAPPs, and the chilling effects of GDPR sanctions.}, keywords = {Data protection, Freedom of expression, GDPR, journalistic exemption, SLAPPS}, }

Using Terms and Conditions to Apply Fundamental Rights to Content Moderation external link

German Law Journal (forthcoming), 2022

Abstract

Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform's terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards, and therefore allowing Article 14 to fulfil its revolutionary potential.

Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions

Bibtex

Article{nokey, title = {Using Terms and Conditions to Apply Fundamental Rights to Content Moderation}, author = {Quintais, J. and Appelman, N. and Fahy, R.}, url = {https://osf.io/f2n7m/}, year = {2022}, date = {2022-11-25}, journal = {German Law Journal (forthcoming)}, abstract = {Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platform\'s terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards, and therefore allowing Article 14 to fulfil its revolutionary potential.}, keywords = {Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions}, }

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights external link

Journal of Intellectual Property Law & Practice, vol. 16, num: 3, pp: 213-225, 2021

Abstract

On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).

Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, Funke Medien, limitations and exceptions, music sampling, Pelham, Spiegel Online

Bibtex

Article{QuintaisJutte2021, title = {The Pelham Chronicles: Sampling, Copyright and Fundamental Rights}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775599}, doi = {https://doi.org/https://doi.org/10.1093/jiplp/jpab040}, year = {0218}, date = {2021-02-18}, journal = {Journal of Intellectual Property Law & Practice}, volume = {16}, number = {3}, pages = {213-225}, abstract = {On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).}, keywords = {Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, Funke Medien, limitations and exceptions, music sampling, Pelham, Spiegel Online}, }