Thread by @daphnehk

Poland’s case arguing that the “upload filter” provisions of DSM/Copyright Directive Article 17 violate Internet users’ fundamental rights, which has been quietly sitting before the CJEU for months, is a ticking time bomb. 1/

One day the ruling is going to come out and change everything. Or maybe nothing. 2/

This thread is about that case, and how it relates to some other looming political and legal questions about filters. 3/

Like almost all intermediary liability cases, the Polish CJEU case about upload filters has the wrong parties before the court. That affects the information and arguments that courts hear, and often distorts outcomes – especially when it comes to fundamental rights. 4/

Usually the absent parties in platform liability cases are the *users* whose rights to privacy/data protection, expression/information, and more will be affected by the ruling. (Or, their rights are affected by how the ruling causes platforms to change their practices.) 5/

The fundamental rights issues are hard. It is not realistic to expect courts to grasp them without bring briefed. And no one has reason to do that well in cases involving only (1) the person harmed by online content and (2) Facebook, YouTube, or some other platform company. 6/

I wrote up the user fundamental rights issues with upload filters, as I see them, in this article about the CJEU’s last filtering case, Glawischnig-Piesczek v. Facebook Ireland -- academic.oup.com/grurint/articl… 7/

The Polish case has really unusual participants, though. The Polish government (nominally a stand-in for affected Internet users) is the claimant. The Court is also hearing from the EU Commission, Parliament and other govt entities. 8/

So everyone is in some sense speaking for the pubic interest. But there is no concrete dispute, no victim talking about real harms or platform talking about real technical capabilities, burdens, etc. The absence of those flesh & blood (or paper & money) parties is a loss, too. 9/

There’s a fascinating write-up of what Poland, the Commission, and others said during oral argument here: communia-association.org/2020/11/12/cje… 10/

Meanwhile the debates about upload filters between © holders and platforms is playing out in slow motion, as a political matter, all over Europe. The deadline for nat'l implementation of Article 17 is in June. Countries must pass laws before they know what the CJEU will say 11/

Here is Article 17, BTW: eur-lex.europa.eu/legal-content/… 12/

The countries that take their jobs seriously are having an incredibly hard time. Article 17 gave them an impossible mandate: make platforms prevent infringement and simultaneously protect lawful uses, at massive scale. 13/

@paul_keller has been doing amazing work describing all this on the Communia and Kluwer blogs. Here's his write-up of the current state of play. copyrightblog.kluweriplaw.com/2021/01/21/div… 14/

France, by the way, is not having a hard time. It solved the Article 17 problem by ignoring and literally not implementing the part about lawful use. copyrightblog.kluweriplaw.com/2021/01/28/art… 15/

Germany and Finland have come up with fairly intricate mechanisms to try to achieve both these goals at once. They are having the conversations about real world implementation and platform operations that should have happened *before* EU lawmakers passed Article 17.
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And @Senficon and Joschka Selinger recently wrote two fascinating posts about Art 17 objections based on fundamental rights of businesses, which have spillover effects for users' rights. copyrightblog.kluweriplaw.com/2021/01/18/art…
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The Commission has held ongoing sessions to try to find a way to thread this needle. The release date for their report keeps slipping. But they, too, will have to speak before knowing how the Court rules in the Polish case. 18/

Whatever the CJEU says about upload filters and fundamental rights will matter for some other, major areas of European law and fundamental rights, as well. 19/

The Polish case will matter for the Digital Services Act, which as of now does little to change the status quo under eCommerce Directive Article 15 and the case law interpreting it, including Glawischnig-Piesczek. 20/

The Polish case will matter for the Terrorist Content Regulation. That’s basically finalized and formally does not require upload filters. But both authorities’ ability to de facto pressure for filters, and platforms’ ability to use filters voluntarily, could be affected. 21/

The Polish case will matter for the pending EU law on platforms and child sexual abuse material (CSAM). Filters for CSAM are widely seen as the ones least likely to raise serious fundamental rights issues, bc of the unique harms and lack of contextually-lawful uses. 22/

Somewhere, in an office in Luxembourg or maybe an apartment out there in the pandemic diaspora, someone is thinking hard about the Polish case. The next step is the AG’s opinion – it is due April 22. 23/

No pressure, guys. But this is one's a really big deal for all of us. 24/24