4. Online Copyright Enforcement in the European Union:
4.5 The enforcement of copyright and its compatibility with other
4.5.1 Copyright vs. freedom of expression
As recently stated by the CJEU, injunctions that would end up imposing systematic and permanent filtering measures on online intermediaries contradict the principle of freedom of expression and communication in so far as filtering tools cannot distinguish between transmissions of unlawful and lawful content.190 As evidenced in the discussion, a side effect on online freedom of expression (or even on the business of a website owner) and the risk of over-blocking is intrinsic in all measures based on content filtering, removal or disabling access to websites.
Copyright enforcement on the Internet can easily lead to restriction of lawful content communications, especially when the target of measures is
189 See Charter of Fundamental Rights of the European Union, OJ 2000/C 364/01, 18 December 2000, [hereinafter Charter of Fundamental Rights].
190 See C-70/10. Scarlet Extended v. SABAM. 24 November 2011, [hereinafter Scarlet Extended v. SABAM], and C-360/10, SABAM v. Netlog, 16 February 2012, which dealt with, respectively, lawfulness of enforcement measures imposing permanent filtering technologies to an ISP and the owner of a social network platform.
an entire website where some lawful content might be stored. Even so-called ‘graduated responses’ (or ‘three-strike’) schemes – like the one introduced in France by the ‘Création et Internet’ legislation – raised serious concerns with regard to freedom of expression (and access to free information) in so far as an administrative body (and not a court) could issue the sanction of disconnection of repeat infringers from the Internet.191 Through a well-known decision, in 2009 the French Constitutional Council held that the protection of freedom of expression and communication under the French constitution includes the freedom to access the Internet and censored the new law in so far as it allowed the sanction of disconnection to be taken by an administrative body.192 The Council held that this provision was inconsistent with the presumption of innocence and the right to a fair trial.
A similar tension with freedom to access information on the Internet can arise in the context of graduated response schemes put in place on a voluntary basis by ISPs on the grounds of agreements concluded with copyright owners. This is an issue that gained momentum in Brussels in 2009, at the time of the extensive negotiations that led to the amendment of the so-called ‘Telecoms Package’, originally adopted in 2003.193 As a result of this reform, the ‘Framework Directive’ has a new provision that now obliges member states that implement measures with the potential to restrict end-user access to (and use of) electronic communications networks (including the Internet) to impose such restrictions only if appropriate, proportionate and necessary within a democratic society and subject to adequate procedural safeguards.194 The Framework Directive now provides that, while imposing restrictive measures in communications networks –
191 See Law 2009/669 of 12 June 2009, amended on 15 September 2009, Journal officiel de la République francaise.
192 See French Constitutional Council, Decision n. 2009-580DC, 10 June 2009, Journal officiel de la République francaise.
193 See Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2008 amending amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services [hereinafter Framework Directive], 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities [hereinafter Access Directive], and 2002/20/EC on the authorisation of electronic communications networks and services [hereinafter Authorisation Directive], OJ L 337/37 (December 18, 2009) [hereinafter Directive 2009/140/EC].
194 See Article 1(3)(a) of the Framework Directive, as amended by Article 1(1)(b) of Directive 2009/140/EC.
like user disconnection from the Internet in the context of graduate response regimes – member states should guarantee to the affected parties a prior, fair and impartial procedure and an effective and timely judicial review. As observed in the literature, even though this amendment does not seem to prohibit EU member states from introducing ‘three-strike’ laws without judicial supervision, the new Framework Directive guarantees at least a court hearing on an appeal from an initial (necessarily fair and impartial) ruling to disconnect.195
As strongly evidenced by the global wave of protests against SOPA in the US and ACTA in the EU, arguments and policy goals such as ‘Internet freedom’ and net neutrality have been used very broadly by civil liberties organisations, activists and, sometimes, even by academics to criticise and reject all forms of online content blocking for reasons of copyright enforcement. A sort of equation between copyright enforcement and Internet censorship has been proposed often in order to describe the chilling (or side) effects stemming from content bans or technical restrictions to information made available online.
The recent global protest against legislation that would have allowed or facilitated copyright enforcement shows that, in addition to the complex legal issues that have to be settled in order to make copyright compatible with other fundamental rights, there is an additional problem for policy-makers to solve, which is more political and sociological than legal. This big issue consists of how to explain and to justify to a very vocal part of public opinion the various forms of control and enforcement that copyright entails in order to make professional content creation and distribution economically sustainable and, possibly, profitable. A strong argument of the advocates of Internet freedom is that the world wide web was not conceived to have sites blocked, and any blocking measure is intrinsically unacceptable since, in political contexts where real censorship exists, site blockings and other technical restrictions of the Internet architecture can be used to silence dissenting opinions and expression of individuals, companies and social media and networks. As acknowledged in the
195 See Barron, ‘Graduated Response’ à l’Anglaise, op. cit., p. 322, who stresses that the amendments referred to in the main text constitute a dilution of an earlier proposal that was known throughout the blogosphere as ‘Amendment 138/Article 8(4)(g)’ to the Framework Directive. Amendment 138 aimed at requiring that disconnection from the Internet should have been permissible (only) through a court decision except when public security was threatened.
discussion, the architecture of the Internet is certainly an invaluable resource to protect in order to ensure freedom of expression and information. It is also in light of this fundamental policy goal that law-makers and courts should strictly comply with the principle of proportionality in shaping and implementing copyright-related restrictions.