Article 13: Monitoring and filtering of internet content is unacceptable

[vc_row][vc_column][vc_column_text]Dear President Juncker,

Dear President Tajani,

Dear President Tusk,

Dear Prime Minister Ratas,

Dear Prime Minister Borissov,

Dear Ministers,

Dear MEP Voss, MEP Boni

The undersigned stakeholders represent fundamental rights organisations.

Fundamental rights, justice and the rule of law are intrinsically linked and constitute core values on which the EU is founded. Any attempt to disregard these values undermines the mutual trust between member states required for the EU to function. Any such attempt would also undermine the commitments made by the European Union and national governments to their citizens.

Article 13 of the proposal on Copyright in the Digital Single Market include obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.

Article 13 introduces new obligations on internet service providers that share and store user-generated content, such as video or photo-sharing platforms or even creative writing websites, including obligations to filter uploads to their services. Article 13 appears to provoke such legal uncertainty that online services will have no other option than to monitor, filter and block EU citizens’ communications if they are to have any chance of staying in business.

Article 13 contradicts existing rules and the case law of the Court of Justice. The Directive of Electronic Commerce (2000/31/EC) regulates the liability for those internet companies that host content on behalf of their users. According to the existing rules, there is an obligation to remove any content that breaches copyright rules, once this has been notified to the provider.

Article 13 would force these companies to actively monitor their users‘ content, which contradicts the ‘no general obligation to monitor’ rules in the Electronic Commerce Directive. The requirement to install a system for filtering electronic communications has twice been rejected by the Court of Justice, in the cases Scarlet Extended (C 70/10) and Netlog/Sabam (C 360/10). Therefore, a legislative provision that requires internet companies to install a filtering system would almost certainly be rejected by the Court of Justice because it would contravene the requirement that a fair balance be struck between the right to intellectual property on the one hand, and the freedom to conduct business and the right to freedom of expression, such as to receive or impart information, on the other.

In particular, the requirement to filter content in this way would violate the freedom of expression set out in Article 11 of the Charter of Fundamental Rights. If internet companies are required to apply filtering mechanisms in order to avoid possible liability, they will. This will lead to excessive filtering and deletion of content and limit the freedom to impart information on the one hand, and the freedom to receive information on the other.

If EU legislation conflicts with the Charter of Fundamental Rights, national constitutional courts are likely to be tempted to disapply it and we can expect such a rule to be annulled by the Court of Justice. This is what happened with the Data Retention Directive (2006/24/EC), when EU legislators ignored compatibility problems with the Charter of Fundamental Rights. In 2014, the Court of Justice declared the Data Retention Directive invalid because it violated the Charter.

Taking into consideration these arguments, we ask the relevant policy-makers to delete Article 13.


Civil Liberties Union for Europe (Liberties)

European Digital Rights (EDRi)

Access Info


Article 19

Associação D3 – Defesa dos Direitos Digitais

Associação Nacional para o Software Livre (ANSOL)

Association for Progressive Communications (APC)

Association for Technology and Internet (ApTI)

Association of the Defence of Human Rights in Romania  (APADOR)

Associazione Antigone

Bangladesh NGOs Network for Radio and Communication (BNNRC)

Bits of Freedom (BoF)

BlueLink Foundation

Bulgarian Helsinki Committee

Center for Democracy & Technology (CDT)

Centre for Peace Studies

Centrum Cyfrowe

Coalizione Italiana Libertà e Diritti Civili (CILD)

Code for Croatia


Culture Action Europe

Electronic Frontier Foundation (EFF)

Estonian Human Rights Centre

Freedom of the Press Foundation

Frënn vun der Ënn

Helsinki Foundation for Human Rights

Hermes Center for Transparency and Digital Human Rights

Human Rights Monitoring Institute

Human Rights Watch

Human Rights Without Frontiers

Hungarian Civil Liberties Union

Index on Censorship

International Partnership for Human Rights (IPHR)

International Service for Human Rights (ISHR)



Justice & Peace

La Quadrature du Net

Media Development Centre

Miklos Haraszti (Former OSCE Media Representative)

Modern Poland Foundation

Netherlands Helsinki Committee

One World Platform

Open Observatory of Network Interference (OONI)

Open Rights Group (ORG)



Plataforma en Defensa de la Libertad de Información (PDLI)

Reporters without Borders (RSF)

Rights International Spain

South East Europe Media Organisation (SEEMO)

South East European Network for Professionalization of Media (SEENPM)


The Right to Know Coalition of Nova Scotia (RTKNS)



CC: Permanent and Deputy Permanent Representatives of the Members States to the EU

CC: Chairs of the JURI and LIBE Committees in the European Parliament

CC: Shadow Rapporteurs and MEPs in the JURI and LIBE Committees in the European Parliament

CC: Secretariats of the JURI and LIBE Committees in the European Parliament

CC: Secretariat of the Council Working Party on Intellectual Property (Copyright)

CC: Secretariat of the Council Working on Competition

CC: Secretariat of the Council Research Working Party[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”12″ style=”load-more” items_per_page=”4″ element_width=”6″ grid_id=”vc_gid:1508140671158-363c6122-72fc-4″ taxonomies=”16927″][/vc_column][/vc_row]

US court orders Google to remove Innocence of Muslims film from YouTube

Muslims demonstate outside Google's London HQ
The Innocence of Muslims is truly the free speech story that keeps on giving. The crude, cheaply made anti-Islam film sparked international outrage when it first appeared on YouTube in September 2012, with even President Obama forced to weigh into the debate after the US Embassy in Cairo issued a tweet “condemning” the video. While ostensibly supporting free speech, the White House did suggest that Google should examine whether the video contravened its own terms of service.

Google eventually blocked the video of its own accord in Libya and Egypt. Meanwhile, in its move to censor the film, Pakistan simply blocked the whole of YouTube.

Now, a US court has ruled that Google should remove the video from YouTube. Not because of blasphemy, but because of copyright. The case against Google and the makers of the film was brought by actress Cindy Lee Garcia, who appears in the film for all of five seconds. Garcia claims that her single line, suggesting that Muhammad was a “child molester” was dubbed, and that she was duped into appearing in the anti-Muslim film, having been told it was a trailer for an adventure movie.

Crucially, she also says that she has a claim to the copyright of the film. The Ninth Circuit Court of Appeals agreed that she may have a claim, and on 19 February ordered Google to remove the film from its YouTube service.

The court further ordered that the ruling be kept secret until 26 February, when the 37-page opinion on the case was issued “to prevent a rush to copy and proliferate the film before Google can comply with the order.”

Google has said it will appeal the order, saying that not only could the copyright claim of a bit-part actor create havoc for filmmakers of the future, but that service providers could now also be swamped with takedown requests from people who regret appearing in works in the public domain.

Interestingly, it also suggests that the simple removal of the video could constitute a tampering with the historical record. That chimes with an argument Index has made before – we seem far more comfortable with the removal of web content than we do with, say, the pulping of books, even though the intent is the same.

As things stand, Google has complied with the order, and the Innocence of Muslims can no longer be found on YouTube.

In yet another twist, Pakistani web freedom campaigner and Index on Censorship award nominee Shahzad Ahmed has used the removal of the video to pressure his government to lift the YouTube ban.

“We think that now the government of Pakistan has been left with no excuse to continue blocking access to YouTube,” he is reported as saying. “But the ban on YouTube has got more to do with the government’s desires and efforts to impose censorship, content filtering and moral policing and we are fighting against them in court through a constitutional petition.”

This article was posted on February 27, 2014 at

Pullman v. Casserly: The future of copyright

Philip Pullman

Philip Pullman


Copyright is simple to understand, except when those who want to get rid of it start complicating the explanation.

If I write a book, the right to make money from it belongs to me, and I make an agreement with a publisher who will print it and distribute it, collect the money it sells for, and pass on a small proportion to me. Anyone who wants to read it either has to buy it, in which case I get that small proportion of the money it sells for, or borrow it from a library, in which case the librarian counts the number of times that title is borrowed, passes on the details to the Public Lending Right administrators, and I’m paid a small sum for each borrowing.

Quite a number of people make money in the course of these processes. The editor, the jacket designer, the publicist, the printer, the library assistant, the bookshop manager, the PLR administrator, and others, all earn a living on the back of the fact that I and my fellow authors have written books that people want to read. And so do I, and that’s as it should be: we all contribute to the process of bringing my book to the public. Our rewards vary, of course: if my book sells a lot of copies I might make more money in a year than the bookshop manager, whereas if it sells very few I’ll make a great deal less. But that’s the risk I take, and on the whole this system is fair, and most authors see the justice of it.

What happens when someone buys my book and lends it to a friend? Well, I don’t get a penny for that, of course. Nor do I get a penny when they decide they would rather get rid of the book and give it to Oxfam, who sells it second-hand. But those transactions are pretty few, and I can put up with the anguish of making no money from them by thinking that, after all, they increase the number of my readers, who might buy my next book themselves.

Now suppose that someone sees there’s money to be made from books, and decides to print and distribute my book themselves, without any agreement with me, and keep all the money they get from it. They’d be fairly stupid to do that, because this is where the law of copyright comes in. They’re not allowed to do it. It’s against the law. That’s why it very rarely happens now, although it used to happen a great deal before international copyright agreements came into existence. Charles Dickens, for example, made no money at all from the vast sale of his books in the United States, and he was justly angered about it.

But nowadays that sort of thing doesn’t happen. Except … Someone invented the internet. And instead of going to the great difficulty and trouble of printing, binding, distributing, and so forth, in order to steal someone else’s literary or musical work, all the thief has to do is press a few keys, and they can make our work available to anyone in the world, and take all the money for themselves. This is most familiar to us in the field of music, of course. The ease and swiftness with which music can be acquired in the form of MP3 downloads is still astonishing even to those of us who have been building up our iTunes list for some time.

Some of us take the moral route, and pay for it, but many don’t. I had a long argument with a young man a year or two ago, a bright, decent student who was going to work in the field of the arts himself, who maintained that he had a right to download anything he wanted without paying for it, because it was there and he could do it. What about the money you’re stealing from the artist? I asked. Well, first of all it wasn’t stealing, he said, it was more like breathing the air that was available to everyone; and secondly, making music was something the musician would do anyway, as a hobby, and downloading it wouldn’t stop them from doing it; and thirdly, if they wanted to make money they should do as other musicians did, and perform live gigs, and go on tour, and sell merchandise at the door.

Then there’s YouTube. The pianist Krystian Zimerman was recently playing at a festival in Essen, Germany, when he spotted a member of the audience filming him on a phone. He stopped playing and left the stage, and  “explained on his return that he had lost recording contracts in the past because his playing of the works in question had already been uploaded onto the internet where people could see it for free,” according to BBC Music Magazine.

Books are slightly different, but the principle is the same. The internet only shows up in stark terms how like a cobweb the law of copyright is when confronted with the sheer force wielded by large corporations. As Richard Morrison wrote in BBC Music Magazine: “Google has been adept at fostering the impression that it is merely an altruistic and democratic ‘platform’ – a digital version of Speaker’s Corner – rather than a commercial publisher that is as accountable to the laws of copyright, libel and theft as any old-fashioned ‘print’ publisher would be. That Google has managed to sustain this illusion of being something like a charity or public service is astonishing, since it is a massively profitable global corporation with ways of minimising its tax bill that many would consider to be the opposite of public-spirited.” At the end of his article Morrison said: “If you quote me, I promise not to sue.”

The technical brilliance is so dazzling that people can’t see the moral squalor of what they’re doing. It is outrageous that anyone can steal an artist’s else’s work and get away with it. It is theft, as surely as reaching into someone’s pocket and taking their wallet is theft. Writers and musicians work in poverty and obscurity for years in order to bring their work to a pitch of skill and imaginative depth that gives delight to their audiences, and as soon as they achieve that, the possibility of making a living from it is taken away from them. There are some who are lucky enough to do well despite the theft and the piracy that goes on all around them; there are many more who are not. The principle is simple, and unaltered by technology, science, or magic: if we want to enjoy the work that someone does, we should pay for it.

Cathy Casserly

Cathy Casserly


The world is changing. Being a creator means something different today from what it meant a few years ago. And, let’s be honest, the change hasn’t been all good. The seemingly endless parade of newspapers shutting their doors or slashing their budgets is a stark reminder that it’s hard to make a living as a content creator. Today’s writers, photographers, and musicians must think very creatively about how to distribute and monetize their work, and the solutions they arrive at may look very different from the ways previous generations of artists made money.

In the past few weeks, there has been a lot of discussion about Spotify and similar music streaming services, and whether they pay artists fairly. The debate underscores the larger issue, that traditional distribution models are quickly becoming obsolete. The new generation of artists must be as cutting-edge with its business models as it is with its art.

According to world-renowned science fiction author Cory Doctorow, “My problem is not piracy, it’s obscurity.” Years ago, Cory decided that making it easy for people to download his books would do more for his career than trying to make it hard would. In other words, Cory doesn’t see people accessing and sharing his work online as a threat; he sees it as his livelihood. In a lot of ways, Cory represents the new possibilities for creators in the digital age. The creators who are thriving today are the ones who use Internet distribution most innovatively; in fact, the ones who are most generous with their work often reap the most reward.

But copyright was created in an analog age. By default, copyright closes the door on countless ways that people can share, build upon, and remix each other’s work, possibilities that were unimaginable when those laws were established. For Cory and artists like him, people sharing and creatively reusing their work literally translates into new fans and new revenue streams. That’s the problem with the all-or-nothing approach to copyright. The All Rights Reserved default doesn’t just restrict the kinds of reuse that eat into your sales; it also restricts the kinds of reuse that can help you build a following in the first place.

I work for Creative Commons, a global nonprofit organization that offers a set of open content licenses which lets creators take copyright into their own hands. By licensing her works under a Creative Commons license, a creator can turn All Rights Reserved into Some Rights Reserved, permitting others to reuse her works as long as they properly attribute her and, if she chooses, comply with one or two additional conditions. We’re not anti-copyright; in fact, our tools go hand-in-hand with copyright. Without the strength of copyright protection behind them, the conditions of a Creative Commons license would be unenforceable. Creative Commons licenses are written by expert copyright lawyers and have been upheld in court numerous times.

What’s more exciting than the licenses’ track record in court is their impact on the world. Writers, musicians, and filmmakers are using our tools to build new creative communities and redefine how artists share, collaborate, and monetize. Scientists and other researchers are publishing their papers and data openly, letting others carry their work forward more swiftly. Governments are starting to require open licensing on resources and research that they fund, ensuring that the public has full access to what it paid for. Educators are building textbooks and other educational resources that anyone can use and customize at no cost, helping to bring higher quality education to communities with limited resources.

Of course, open licensing alone isn’t what makes a creator successful. Cory is successful because he’s a gifted and hard-working writer. Amanda Palmer is famous thanks to her songwriting talent and charisma. Jonathan Worth wouldn’t be a sought-after photographer if he didn’t have a knack for taking perfect shots. These people aren’t successful because of Creative Commons. But they are successful, in part, because they found ways to let the power of the Internet carry their careers to new heights. And for each of them, that strategy included sharing their work widely under an open license.

It’s impossible to imagine how new technologies will redefine the next generation of creative professionals, but I believe that the most innovative creators won’t try to go back in time. Instead, they’ll use new technologies to their own benefit and that of their peers. They’ll carry technology forward rather than trying to fight it back. I can’t wait to see what’s next.

Philip Pullman is the president of the Society of Authors @Soc_of_Authors

Cathy Casserly is chief executive of Creative Commons @cathycasserly

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This article is reproduced from the autumn 2013 edition of Index on Censorship magazine, which will be published on 1 Oct.

The Queen’s speech and free speech


Today’s impressively short Queen’s Speech contained two nuggets of interest for Index readers. Firstly, there was the mention of intellectual propety:

A further Bill will make it easier for businesses to protect their intellectual property

The debate over copyright and free speech has been fraught, with widespread criticism of governmental attempts to create laws on copyright on the web. (Read Brian Pellot on World Intellectual Property Day here here and Joe McNamee’s “Getting Copyright Right” here.)

This is something the government will have to treat very carefully, and the consultation should be fascinating.

Further in, the speech addressed crime in cyberspace:

In relation to the problem of matching internet protocol addresses, my government will bring forward proposals to enable the protection of the public and the investigation of crime in cyberspace.

Here’s more detail from the background briefing:

The Government is committed to ensuring that law enforcement and intelligence agencies have the powers they need to protect the public and ensure national security. These agencies use communications data – the who, when, where and how of a communication, but not its content – to investigate and prosecute serious crimes. Communications data helps to keep the public safe: it is used by the police to investigate crimes, bring offenders to justice and to save lives. This is not about indiscriminately accessing internet data of innocent members of the public.

As the way in which we communicate changes, the data needed by the police is no longer always available. While they can, where necessary and proportionate to do so as part of a specific criminal investigation, identify who has made a telephone call (or
sent an SMS text message), and when and where, they cannot always do the same for communications sent over the internet, such as email, internet telephony or instant messaging. This is because communications service providers do not retain
all the relevant data.

When communicating over the Internet, people are allocated an Internet Protocol (IP) address. However, these addresses are generally shared between a number of people. In order to know who has actually sent an email or made a Skype call, the
police need to know who used a certain IP address at a given point in time. Without this, if a suspect used the internet to communicate instead of making a phone call, it may not be possible for the police to identify them.

The Government is looking at ways of addressing this issue with CSPs. It may involve legislation.

Eagle-eyed observers will note that this echoes what Deputy Prime Minister Nick Clegg told LBC listeners on 25 April, after announcing that the dreaded Communications Data Bill (aka the “Snooper’s Charter”) was to be dropped. Clegg suggested then that IP addresses could be assigned to each individual device.

As I wrote at the time, “New proposals for monitoring and surveillance will no doubt emerge, and will be subject to the same scrutiny and criticism as the previous attempts to establish a Snooper’s Charter.”

Well, here we are.

Padraig Reidy is senior writer for Index on Censorship. @mePadraigReidy