Members of the European Union's parliament ignored dire warnings that they're heading down a path toward massive online censorship and have passed legislation that will hold online platforms financially liable for copyright violations by users and would require search engines and social media platforms to get licenses from media companies to share even snippets of their content.
Today E.U. leaders passed the Copyright in the Digital Single Market Directive, 348 to 274. The ambiguous title conceals sweeping regulations pushed by European media and entertainment outlets intended to increase their authority to police their copyright content online. But the sheer breadth of the regulations have tech platforms and online speech activists deeply worried. More than 100,000 protesters gathered in Germany over the weekend to try to keep two parts of the directive from passing.
Article 11 will require any online information sharing platform to get a license from a media outlet before sharing any of its content. How much "sharing" has to take place before the license demand is triggered is unclear, upending concepts of "fair use" and potentially making it all but impossible to share news stories unless the platform has gotten a license (and potentially paid a fee) to the media outlet or content producer.
So, for example, if Facebook wants to continue showing an excerpt of a Reason story whenever somebody posts a link to us on their wall, Facebook would have to seek out a license from Reason to allow the social media site to show more than a link and maybe a headline, and even that's not sure. There's no opt-out process. Reason cannot declare that anybody can share whatever they want of our stuff.
Everybody from Google representatives to academic experts have warned that this will hurt small and new publishers the most, because online platforms are not likely to go through the effort to seek out and certainly aren't going to be willing to pay for the "privilege" of sharing a sentence or two and a picture. And that means established and larger media outlets will be the beneficiaries of this rule, assuming there are any beneficiaries at all. Google has warned that search results that comply with Article 11 will likely result in fewer visitors to these media sites, not more money in licensing fees for the publishers.
But Article 13 has the potential for some seriously disastrous censorship outcomes online. Article 13 essentially says that online platforms must prevent users from uploading copyrighted content and take responsibility for any such content that is uploaded. Period. Any platform that's been around for more than three years or earns more than $11 million a year can be held financially responsible for any copyrighted content that makes it onto its site.
This incredibly broad, incredibly vague demand will likely lead to the big sites using various upload filters and automated identification systems that—to be blunt—have historically done a terrible job at identifying copyrighted content. And those are the big tech companies like YouTube. This will be an extremely expensive, possibly impossible request for many smaller online platforms. It will lead to massive amounts of censorship due to potential fears of lawsuits. And most certainly there are going to be many, many people on the lookout for opportunities to sue over this. Government officials will likely be looking for opportunities as well; Andrea O'Sullivan noted this morning how the European Union has been using fines against big tech companies as a source of funding. The vagueness of this legislation is likely deliberate
Danny O'Brien at the Electronic Frontier Foundation looks at the likely outcomes as these regulations go into effect:
We can expect media and rightsholders to lobby for the most draconian possible national laws, then promptly march to the courts to extract fines whenever anyone online wanders over its fuzzy lines. The Directive is written so that any owner of copyrighted material can demand satisfaction from an Internet service, and we've already seen that the rightsholders are by no means united on what Big Tech should be doing. Whatever Internet companies and organizations do to comply with twenty-seven or more national laws—from dropping links to European news sites entirely, to upping their already over-sensitive filtering systems, or seeking to strike deals with key media conglomerates—will be challenged by one rightsholder faction or another.
A spokesperson for Google responded that the company has seen improvements in the legislation as the drafting has moved forward but warned "it will still lead to legal uncertainty and will hurt Europe's creative and digital economies. The details matter, and we look forward to working with policy makers, publishers, creators and rights holders as EU member states move to implement these new rules."
It may end up eventually being that you'll find your posts being censored by Facebook, and not because you've said something offensive that violates the social media platform's terms, but because Facebook doesn't want to be sued by somebody in Belgium.
That these regulations have passed is again a reminder of how stupid it was for presidential candidate Sen. Elizabeth Warren (D-Mass.) to go after Facebook for declining an ad featuring its trademarked logo. Given the knee-jerk response by some government officials in America suggesting they want to try to force social media platforms to carry their messages we may well end up in a situation in which Facebook is legally required to post a message or image in one country, but legally forbidden to do so in another. And it would face huge legal consequences if it cannot do both.