‘Upload filters’ and human rights: implementing Article 17 of the Directive on Copyright in the Digital Single Market

ABSTRACT This paper critically examines to what extent Article 17 of the EU Directive on Copyright in the Digital Single Market (CDSM) could be implemented in a way which complies with the right of online content-sharing service providers and uploaders to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (ECHR), the E-Commerce Directive 2000/31 and the General Data Protection Regulation 2016/679. The analysis draws upon Article 17 CDSM Directive, the case-law of the Strasbourg and Luxembourg courts, and academic literature. It assesses the compliance of ‘upload filters’ with the European Court of Human Rights’ (ECtHR) three-part, non-cumulative test to determine whether the obligations laid down in Article 17 can be implemented: firstly, that it is ‘in accordance with the law’; secondly, that it pursues one or more legitimate aims contained in Article 8(2) and 10(2) Convention; and thirdly, that it is ‘necessary’ and ‘proportionate’. The paper also evaluates the compatibility of upload filters with the ECtHR principle of presumption of innocence under Article 6 ECHR. It proposes that for Article 17 to be a human rights-compliant response, upload filters must be targeted specifically at online infringement of copyright on a commercial-scale.