Abstract
ABSTRACTThis paper critically assesses the compatibility of content recognition and filtering technology or so-called notice and staydown approach with the right of social network platforms and users to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (1950) (ECHR). The analysis draws on Article 13 of the European Commission’s proposal for a Directive on Copyright, the case-law of the Strasbourg and Luxembourg Court and academic literature. It argues that the adoption of content recognition and filtering technology could pose a threat to social network platforms and user human rights. It considers the compliance of ‘notice and staydown’ with the European Court of Human Rights’ (ECtHR) three-part, non-cumulative test, to determine whether a ‘notice and staydown’ approach is, firstly, ‘in accordance with the law’, secondly, pursues one or more legitimate aims included in Article 8(2) and 10(2) ECHR and thirdly, is ‘necessary’ and ‘proportionate’. It concludes that ‘notice and staydown’ could infringe part one and part three of the ECtHR test as well as the ECtHR principle of equality of arms, thereby violating the rights of social network platforms and users under Articles 6, 8 and 10 of the Convention.
Highlights
According to Urban, Karaganis, and Schofield (2016), the US Digital Millennium Copyright Act 1998 (DMCA) includes a compromise which encourages rightholders and service providers to cooperate in reducing online copyright infringement
Strasbourg and Luxembourg Court and academic literature. It argues that the adoption of content recognition and filtering technology could pose a threat to social network platforms and user human rights
The purpose of this paper is twofold: firstly, to critically assess whether the implementation of notice and staydown required by the Directive would be compatible with the right of social network platforms and users to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (ECHR) 1950 and secondly, if the adoption of content recognition and filtering technology were to violate the Convention, to suggest and appraise some procedural safeguards to ensure the Directive’s compatibility with the ECHR
Summary
According to Urban, Karaganis, and Schofield (2016), the US Digital Millennium Copyright Act 1998 (DMCA) includes a compromise which encourages rightholders and service providers to cooperate in reducing online copyright infringement. This sets out a safe harbour framework that on the one hand allows rightholders to send takedown requests to these services, which must be expeditiously acknowledged, while on the other enables the targets of notifications to challenge those requests through a counter-notice system. Urban, Karaganis, and Schofield (2016) explain that the E-Commerce Directive 2000/31/EC was broadly inspired by the DMCA safe harbour framework Under Article 15 of the E-Commerce Directive, no general monitoring obligations for the detection or takedown of unlawful material can be imposed on these services
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