The continental rift: Two pieces of EU legislative reform that could have ‘substantial effect’ on freedom of expression rights for media and public alike

In an age of populism, we should be wary of tribalism in all its forms.

If you are a struggling media publisher seeing all your digital advertising revenue drained by Google and Facebook, you may think the war of the age is publishers vs. platforms.

In the fires forged by the Brexit Referendum and burning still, you may be tempted to view all EU legislation as either benign or malign, depending on your tribal allegiance to Leave or Remain.

But on two issues of the day, a dispassionate and serious view must be taken. They are two pieces of EU legislative reform which, with the possible exception of the General Data Protection Regulation (GDPR), will have a greater impact on media plurality and freedom of expression than any other law passed in the last 20 years.

In neither case has there been anything like the sort of debate that we have seen over the trivial-by-comparison reforms to press regulation in the post-Leveson era.

Copyright Directive

All copyright law throws up free expression issues: the whole point of it is that society grants originators of creative content monopolistic rights, and the ability to silence those who infringe.

Copyright can be a powerful tool for claimants in media litigation. The exemptions are narrower, the remedies more powerful, and the terrain hostile to non-specialist lawyers.

But the mooted proposals to the EU Copyright Directive, upon which the European Parliament will vote tomorrow, are more significant by an order of magnitude.

A particular source of controversy is the inclusion of Articles 11 and 13, which respectively provide for a “link tax” and making user-generated platforms (like Youtube) take ex ante action (like copyrighted content recognition and filtering technologies) rather than the existing ex post facto “notice and takedown” regime which currently applies to hosting providers who are “internet society services”.

This has led to heated debate across the internet, with the Society of Authors and other rightsholder organisations lobbying hard for the new proposals, and major tech firms and digital rights activists lobbying against.

Natasha Lomas at Techcrunch has put together a good primer on the various positions ahead of Wednesday’s vote. EDRI have done a line-by-line analysis of the problems with Article 13 specifically.

Article 13 will engage the sort of technology that caught out pianist James Rhodes earlier this week. Having recorded some JS Bach in his living room and uploaded it to Facebook, the automated content filters considered that 47 seconds of it were too similar to a recording owned by Sony, and it was taken down. The free expression implications are obvious.

As for the “link tax”, this is an EU-wide attempt to replicate measures that were imposed on Google News in both Spain and Germany.

Superficially, this might seem like the sort of thing traditional publishers should want: Google and others paying a tax for the copyright in headlines. Except that when operated in Germany and Spain, they didn’t exactly earn universal acclaim, according to German MEP (Pirate Party) Julia Reda.

The argument is that link taxes embed legacy tech platforms, stifle new entrants to online media, and might lead to Google et al deciding that maybe indexing links to news media at all (which isn’t, after all, their core business) isn’t worth the cost of the tax (if the EU proposal makes it incapable of being waived by publishers).

Few activists are intrinsically opposed to copyright per se, but the scale of structural reform to digital publishing proposed in the Copyright Directive is breathtaking, and perhaps deserves a little more scrutiny than it has so far enjoyed.

Audi Visual Media Services Directive

From the sinister to the ridiculous, the second major proposed area of EU law reform is the new Audio-Visual Media Services Directive (“AVMSD”).

This directive already exists, and applies broadcast-like regulations about advertising and offensive content to online audio and video services, but only if they are (a) “TV-like” and (b) under the editorial control of the audio-visual media service provider.

Essentially, the AVMSD was a relatively sensible way of ensuring that broadcasters’ online catch-up services like BBC iPlayer or Channel 4 On Demand had to operate to the same rules as BBC and Channel 4 as-broadcast.

The major reforms follow a lengthy and hard-fought period of consultation which resulted in nobody really agreeing about anything.

The justifications for change are (as always) the welfare of children to protect them from advertising, and invigorating the EU’s digital single market. And so the proposal goes ahead with two key planks which are worthy of note.

First, the removal of the “TV-like” stipulation, which means that the provisions of the AVMSD will likely now extend to user-generated hosting platforms like YouTube or Vimeo or Facebook.

The European Commission even accepts that the new AVMSD will apply to, if not to newspaper websites in their entirety, at least to standalone parts of newspaper websites that feature audio podcasts or video programming.

So if your favourite news website has a podcast or videos section, that would now be regulated in a similar way to broadcast TV.

The other major change is the application of minimum share of “European works” (i.e. audio or visual content produced within the EU) that must be included in any service.

For TV networks, the minimum will be 50 per cent European works, whereas user-generated platforms like Youtube (and the parts of newspaper websites to which the AVMSD will apply) will only have to guarantee that 30 per cent of their available content is “European works”.

How a user-generated social media platform like Youtube or Facebook is supposed to police this threshold is unclear to me: maybe a limit on non-European videos if not enough have been uploaded from the EU, or maybe a requirement that they commission EU-based videographers to make-up for any shortfall. Netflix and iTunes are currently at only 21 per cent European works, so they will have some work to do.

Conclusion

The vote on the Copyright Directive is tomorrow. The AVMSD is due to come into force in autumn 2018, with member states given 21 months to bring it into force in domestic law. How that interacts with the Brexit position is unknowable at this time.

Whatever your views on the above proposals, and in a personal capacity I am implacably opposed to both, we should at least be able to reach a non-tribal agreement that these reforms are of substantial effect to freedom of expression rights (both of the general public and of the media), and both need and deserve to be fully debated before they are implemented in the UK, whether as EU directives for the period in which we remain a member state, or in whatever the post-Brexit state of affairs comes to pass.

Greg Callus is a barrister specialising in media and communications law at 5RB chambers. He acts for both claimants and defendants alike, with a particular focus on open justice and reporting restrictions. He tweets as @Greg_Callus.

Picture: Wikimedia Commons