Thread by @daphnehk

I finally read Øe’s Opinion in the CJEU’s pending case about Article 17 filtering/fundamental rights, and it is amazing. Here comes a long thread about what stood out to me. curia.europa.eu/juris/document…

Of course, I don’t like the upshot: Article 17 stands. Øe reconciles that with users' rights by, as @bjjuette and @giuliapriora put it, confining the law in a “tight corset of conditions to safeguard compliance with EU fundamental rights.” copyrightblog.kluweriplaw.com/2021/07/20/on-…

@bjjuette @giuliapriora (That blog post is a great overall explainer of the issue and the Opinion, BTW, with lots of useful links.)

@bjjuette @giuliapriora To reach his conclusion, Øe goes on a remarkable tour of fundamental principles in intermediary liability. He also sets aside a lot of nonsense with an efficiency and brusqueness that will bring joy to realists everywhere. Here's a rough list of highlights.

(1) Yes, for purposes of fundamental rights analysis we need to assume Art 17 is about filtering, not some other hypothetical "innovative solution."
(2) Filtering is functionally a *requirement* even if formally it is called a condition for immunity.
Par. 61-62, 64, 69, 85

(3) Governments can't avoid responsibility for bad platform laws by blaming the platforms.
"[T]he ‘interference’ with the freedom of expression of users is indeed attributable to the EU legislature. It has instigated that interference." Par. 84

This is so clear and powerful: "The legislature cannot delegate such a task and at the same time shift all liability to those providers for the resulting interferences with the fundamental rights of users." Par. 84

(4) The real-world effects of filters (or any other technology mandate) matter. "[I]n order to assess the compatibility of Article 17 of Directive 2019/790 with Article 11 of the Charter, account must be taken not only of its wording, but also of its actual effects.” Par 86

(5) THIS IS HUGE: The prohibition on "general monitoring" in ECD Art. 15 isn't just legislative. It is "a general principle of law governing the Internet, in that it gives practical effect, in the digital environment, to the fundamental freedom of communication." Par. 106

So much flows from this linkage of fundamental rights and filtering mandates. The AG Opinion is rich in analysis of free expression and information rights, filters, and intermediary liability generally.

(5.1) "Filtering entails a significant risk to freedom of expression, namely the risk of ‘over-blocking’ lawful content." Par. 141

(5.2) Corrective procedures, including appeals and reinstatement, "are not sufficient on their own to ensure a ‘fair balance’ between copyright and users’ freedom of expression" after filters remove the wrong content.
Par. 180

"The collateral effect of such filtering is too great to be compatible with that freedom, irrespective of whether injured users have a right of appeal against the blocking of their information." Par. 186

One reason that appeals are not enough to make up for a broken content takedown system is, per the AG, that it "systematically impos[es] the burden of inaction on users," who often will be afraid or insufficiently motivated to appeal. Par. 187

Relying on appeals to correct filters' errors is also inadequate, he continues, because so much online speech is time-sensitive. "Delaying the posting of such content by its systematic blocking ex ante would risk rendering it irrelevant." Par. 188

5.3 To protect users' rights, filters can be required only for content whose illegality is "manifest, without... the need for contextualisation" or that has been adjudicated by a court. Par. 198
This, too, is a really big deal for Art. 17.

5.4 Only copies that are identical or equivalent to a degree that "will not require... service providers to make an ‘independent assessment’ of their lawfulness" can be subject of filtering mandates. Par 202, 205
Also a big deal, and closely tracks Glawischnig-Piesczek

The AG gets pretty deep in the weeds on things like "parameters in content recognition tools which help distinguish between what seems manifest and what is ambiguous." Check out Par. 211 if that's your thing.

5.5 If available filtering technology can't avoid excessive false positives, then filtering is not required under Art 17.7.
Par. 214, 67-68.

5.6 Laws should not require platforms to make hard legal judgments about user speech. They lack "the necessary expertise and, above all, the necessary independence... particularly when they face the threat of heavy liability." Par. 197
That matters for *all* notice and takedown.

6. The conclusion that filtering mandates are inextricable from fundamental rights also has consequences for state institutions.
EU legislators "cannot... leave to the Member States [or] the service providers...the task of establishing such safeguards." Par 151

And Member States can't just skip implementing key protections required by the Directive for user rights. AHEM, France. 162.

That's the really meaty part. But here are some more tidbits that caught my eye.
(a) The legislator "considered that ‘false positives’, consisting of blocking legal content, were more serious than ‘false negatives’, which would mean letting some illegal content through." Par. 207

(b) Regarding that weird last-minute earmark giving copyright-holders additional rights in the Commission Guidance: "I cannot agree with this, unless I alter all the considerations set out in this Opinion.” Par. 223

(c) The AG is refreshingly frank about how the court's statutory interpretation of "general monitoring" has changed over time. He thinks the change is OK, I don't so much. Par. 111-113

(d) An odd little must-carry requirement sneaks in in Par. 163. Platforms cannot *choose* to disregard protections for parody, etc. Nor can they contract with copyright-holders to do so! (This is a thing that has, in fact, happened.) They can still remove on non-(c) grounds.

OK, that's my tour of the AG Opinion on Art 17. I hope this (especially the citations) can be helpful to those who are in positions to take the many great, great nuggets of wisdom in this Opinion and put them to good use.
Fin.

Oh wait wait one more thing on must-carry from the AG Opinion. At one point instead of saying the state can't mandate over-filtering, he says platforms "are not authorised" to over-filter. Odd and interesting... (205)