EU proposed ‘Mandatory Piracy Filters’ challenged by member states

Long awaited reforms to the EU’s Copyright laws are coming under increased scrutiny after a number of member states questioned whether the mandatory piracy filters which have been proposed are themselves compatible with existing EU law.

The proposals were first published in September last year and as they have made their arduous way through the EU’s bureaucratic process have been steadily strengthened, which has created a number of problems as we reported earlier in the summer.

Mandatory monitoring and filtering

One of the requirements of the new laws is to provide a more effective legislative process for EU nations to tackle piracy. To this end, Article 13 of the proposed Copyright Directive requires ISPs and telecoms companies to work with copyright holders to monitor and filter pirated content.

This essentially boils down to a filter which will automatically block any pirated content before it reaches users in EU countries. Such a proposal has drawn parallels with the online censorship delivered by the Great Firewall in China and has seen a number of high profile figures speak out against it.

Let’s leave aside for a moment the fundamental flaw in the proposal, which is that any EU user will be able to get around such filters by using a VPN to connect to a server outside the EU’s jurisdiction.

Instead, let’s address the legal problems with the proposal for mandatory filters. Because a number of member states have written to the Council Legal Service questioning whether this proposal is compatible with existing EU case law and Human Rights legislation.

Member states questioning legality

Statewatch, a campaign group which monitors justice and civil liberties issues within the EU, has published a letter which has been sent by authorities in Belgium, Czech Republic, Finland, Hungary, Ireland and the Netherlands.

In it, they question the proportionality and compatibility of the proposals, asking “Would the standalone measure/ obligation as currently proposed under Article 13 be compatible with the Charter of Human Rights […] in the light of the jurisprudence of the CJEU that aims to secure a fair balance in the application of competing fundamental rights? Are the proposed measures justified and proportionate?”

The authorities suggest that mandatory filters could infringe on the right to freedom of expression and freedom of information as well as the right to conduct a business and data protection laws.

This is a vital quartet of fundamental liberties and when you begin to understand just a how a piracy filter would have to work, it becomes clearer why they are all at risk and why the proposal is such a catastrophically bad idea.

Basically, any filter would have to monitor all online communications if it is going to identify everything that might be pirated content. This would appear to be against existing EU law, with the Sabam v Netlog ruling clarifying that hosting sites cannot be required to filter copyrighted content, as this would be in breach of the privacy of users and hinder freedom of information.

On a more basic level, the letter also questions how such a filter would make allowances for quotation and parody of copyrighted content all of which is perfectly legal and acceptable under all EU law. No obvious answer to this issue has been suggested by the EU, or indeed copyright holders, so far.

The EU bureaucracy blessing

The proposals still have a long way to go before they pass into law. Nothing happens quickly or easily within the EU bureaucracy, which in this case is a blessing rather than a curse. It means there is still plenty of time for these new copyright law proposals to be amended to make them both workable and legal in the eyes of the EU.

But as we noted earlier, if such a filter is put into place and then not subsequently overturned by the European Courts, users need not worry. A reliable VPN such as IPVanish or ExpressVPN offers them the choice of servers from a whole host of non-EU countries.

With a VPN, it will be easy to get around any censorship or filters the EU puts in place and still enjoy their online freedoms. The ones which EU laws states they are entitled to, but EU legislators seem determined to curtail.