The Magic Bullet That Isn’t!

Article 17 of the European Union (EU)’s Copyright in the Digital Single Market Directive (DSM, 2019) continues to face harsh criticism for its failure to effectively safeguard user rights to rely on copyright exceptions  for quotation and parody in sharing user-generated content (UGC) on social media platforms. UGC involves the transformative use of existing informational and cultural content in creative ways for purposes of social commentary and critique (e.g., parodies, memes, GIFs, commentaries). It thereby offers a powerful means of dissecting contemporary social and political narratives (Peverini, 2015) and provides an “unprecedented platform for the exercise of freedom of expression” (Poland v Council, para. 46).  Copyright exceptions for quotation and parody facilitate such transformative uses of in-copyright content and therefore have a vital function in protecting users’ freedom of expression. For this reason, the Court of Justice of the EU (CJEU) has vested these exceptions with the character of user ‘rights’ as opposed to mere user freedoms or privileges (Deckmyn, Funke Medien, Pelham, Spiegel Online). As noted by AG Saugmandsgaard Øe in his Opinion in the Poland v Council case, a significant proportion of content uploaded by users to social media platforms will come within the scope of these two exceptions (para, 145). Thus, Article 17 DSM’s failure to effectively safeguard these copyright exceptions can gravely undermine users’ freedom of expression in the digital public sphere.

Against this backdrop, the enactment of Article 14 of the EU Digital Services Act (DSA, 2022) offered fresh hope. Could it be the eagerly awaited ‘magic bullet’ that ensures effective protection of user rights to rely copyright exceptions to parody and quotation on social media platforms? As this essay seeks to demonstrate, the possibility of such an outcome is doubtful.

Article 17 DSM’s Failure to Effectively Safeguard User Rights to Quotation and Parody.

To provide a brief recap, Article 17 DSM constitutes sector-specific legislation that is lex specialis to the general EU intermediary liability framework provided under Articles 4-6 of the DSA. It imposes primary liability on online content-sharing service providers (OCSSPs) — which include social media platforms — for copyright infringement materially committed by users of the platform (Article 17(1) DSM) and denies them protection under the Article 6 DSA ‘safe harbor’ (Article 17(3) DSM).

In order to avoid this high degree of liability, platforms are obliged under Articles 17(4)(b) and (c) DSM to engage in preventive monitoring and filtering of user-uploaded content. Shortly after its enactment, Poland went before the CJEU to seek annulment of Articles 17(4)(b) and (c) DSM (Poland v Council) on the grounds that the fulfilment of these obligations compel  platforms to carry out prior automatic filtering of user-uploaded content in a manner that undermines users’ fundamental right to freedom of expression as guaranteed by Article 11 of the EU Charter on Fundamental Rights (CFR). The CJEU in its decision, conceded that the aforesaid provisions could in fact impose prior restraints on users’ freedom of expression, particularly by restricting their ability to share user-generated content (UGC) (Poland v Council, paras. 45-58). Yet, the CJEU rejected Poland’s application for annulment, particularly on the grounds that safeguards for copyright exceptions (including the exceptions for parody and quotation) in Articles 17(7) and 17(9) prescribe a specific result to be achieved by platforms and establish “clear and precise limits” (Poland v Council, para 85) on the measures they are permitted to implement in fulfilling their obligations under Articles 17(4)(b) and (c) DSM. In the CJEU’s view, these provisions effectively circumscribe platforms’ freedom to arbitrarily impose prior restraints on users’ freedom of expression through content moderation (Poland v Council paras. 78, 80, 85).

Despite the optimism displayed by the CJEU, the practical efficacy of Articles 17(7) and 17(9) in protecting users’ freedom of expression are moot. Neither provision can be interpreted as imposing enforceable legal obligations on platforms to design and implement their content moderation systems in a way that safeguards user rights to benefit from the above exceptions. Article 17(7) stipulates that content moderation should not prevent the sharing of user-uploaded content that comes within the scope of copyright exceptions and limitations (E&L). But the obligation to ensure that users are able to benefit from the exceptions for quotation and parody in sharing UGC is imposed on Member States (as opposed to platforms). Article 17(9) DSM, obliges platforms to “inform their users in their terms and conditions” that they can rely on copyright E&L. Given the vague wording of Article 17(9) DSM, it is uncertain whether it constitutes a mere information obligation or if it could be interpreted to grant users a contractual entitlement to benefit from E&L in the sharing of UGC.

Given the fact that no liability is imputed to platforms for failure to comply with these provisions and in the absence of a regulatory mechanism to oversee compliance, it is difficult to ensure that platforms will design and implement content moderation systems in a way that can achieve the ‘prescribed result’ which the CJEU was so confident of accomplishing.

Enter Article 14 DSA

Article 14(4) DSA obliges platforms to have “due regard to the rights and legitimate interests of all parties involved, including the fundamental rights of the recipients of the service, such as the freedom of expression” in applying or enforcing any restrictions which they impose in relation to the use of their service [emphasis added]. Recital 47 reiterates this obligation but extends its scope also to the design of the restrictions.

According to Article 14(1) DSA, such restrictions include “policies, procedures, measures and tools used for the purpose of content moderation, including algorithmic decision-making and human review” [emphasis added]. The question arose whether Article 14(4) could be interpreted as imposing positive obligations on social media platforms to design and implement their content moderation systems in a manner that effectively protects users’ freedom of expression.

The term “due regard” in Article 14 DSA is vague and ambiguous. However, it has been argued that Article 14(4) DSA could be interpreted to give indirect horizontal effect to the fundamental rights of platform users as enshrined in the CFR (Quintais, Appelman and Fathaigh, 2022). If this view is upheld, two further questions arise.

Application of Article 14 DSA to Copyright Enforcement: Lex Generalis vs. Lex Specialis

The first question is whether, Article 14 DSA would apply to aspects of content moderation that aim to fulfill obligations imposed under Article 17 DSM? As mentioned before, Article 17 DSM is lex specialis. Article 2(4)(b) DSA read with Recital 11 stipulates that the DSA is without prejudice to EU law on copyright and related rights including the DSM Directive, which should remain unaffected. This is in accordance with the general principle of lex specialis derogat legem generalem. On the other hand, the application of Article 14 DSA to Article 17 DSM does not result in a conflict of norms. On the contrary (as per CJEU’s interpretation of Articles 17(7) and 17(9) DSM in Poland v Council), these provisions complement Article 14 DSA by seeking to ensure that content moderation systems are designed and implemented in ways that safeguard users’ ability to benefit from copyright E&L, particularly the exceptions to parody and quotation. In addition, the importance of achieving an adequate balance between copyright enforcement and the protection of users’ freedom of expression is already enunciated Article 17(10) DSM and Recital 84 DSM. Thus, there are strong arguments to be made in favor of extending the application of Article 14 DSA to content moderation aimed at copyright enforcement on social media platforms.

If so, other provisions of the DSA which aim towards operationalizing Article 14 should also apply to aspects of content moderation aimed at copyright enforcement on these platforms. For instance, ‘due diligence’ obligations to provide periodic reports on the use of automated systems for content moderation (Article 15(1)(e) DSA), to carry out periodic risk assessments of systemic risks for freedom of expression stemming from the design or functioning of automated and non-automated content moderation systems (Article 34(1)(b) DSA) and to put in place reasonable, proportionate and effective measures to mitigate these systemic risks (Article 35(1)(c) DSA).

The due diligence obligation in Article 15 DSA would normally apply to content moderation systems deployed by social media platforms in their character as intermediary services, and those in Articles 34  and 35 DSA would apply to social media platforms which fall within the definition of ‘Very Large Online Platforms’ (VLOPs) under Article 33(1) DSA. However, given the lex specialis nature of Article 17 DSM, there is an uncertainty whether they would also apply aspects of content moderation which are specifically aimed towards copyright enforcement.  The application of Article 14 DSA to Article 17 DSM would conclusively support such an extension of these ‘due diligence’ obligations. Thus, the periodic risk assessment reports would need to include an assessment of the efficacy of the content moderation system in accurately identifying uses of in-copyright content that fall within the scope of the quotation and parody exceptions in a manner that can effectively protects users’ freedom of expression. Where a high-risk of wrongful blocking is indicated, the social media platform would be obliged (pursuant to Article 35(1)(c) DSA) to put in place effective measures to mitigate these shortcomings (e.g., enhanced oversight by human moderators who have been trained to correctly identify uses falling within these exceptions). Thus, the application of Article 14 DSA to Article 17 DSM would lead the way for enhanced regulatory supervision of content moderation systems deployed by social media platforms for the purpose of copyright enforcement. It could be reasonably expected that this could lead to a gradual improvement in the ability of content moderation systems better safeguard copyright exceptions for quotation and parody, which would certainly prove a very positive outcome.

Enforcement of User Rights to Rely on Copyright Exceptions

If Article 14 DSA could apply to Article 17 DSM, then, the second question is what would be the impact of Article 14 DSA on users’ ability to enforce their user rights to rely on copyright exceptions to quotation and parody? Unlike direct horizontal effect, indirect horizontal effect does not impose positive obligations on private parties to safeguard fundamental rights in their legal relationships with other private parties. Rather, it merely enables a court to interpret and enforce private law obligations in a manner that is consistent with fundamental rights, thereby resulting in the permeation of these constitutional norms into the private law sphere (Phillipson, 1999, p. 830). Could the application of Article 14 DSA enable a court to order platform owners to adjust their content moderation systems to ensure that the exceptions to quotation and parody are given effect in a manner that safeguards users’ freedom of expression? The answer to this question heavily depends on how EU courts would interpret Article 17(9) DSM. As noted above, the wording of Article 17(9) could be construed to grant users a contractual entitlement to benefit from the exceptions for quotation and parody in the sharing of UGC. If so, were UGC that comes within the scope of the exceptions to quotation and parody wrongfully blocked by a platform, the aggrieved user would be able to bring a claim under breach of contract for violation of Article 17(9) and demand that the platform design and implement their content moderation systems in a way that safeguards her freedom of expression?

Conclusion

As is evident from the foregoing discussion, the impact of Article 14 DSA in safeguarding copyright exceptions on social media platforms is, as yet, uncertain. Its potential to lead the way for enhanced regulatory supervision of aspects of content moderation systems aimed at copyright enforcement is indeed propitious. However, its efficacy in terms of imposing direct/indirect obligations on social media platforms to adequately safeguard user rights to rely on the quotation and parody exceptions remains doubtful.

Much depends on how the scope and intended legal effects of Article 14 DSA and Articles 17(7) and 17(9) DSM is interpreted by courts in the future. However, it is likely that Article 14 DSA will not prove the ‘magic bullet’ that copyright scholars and social media platform users have eagerly been awaiting. On the other hand, if clear legislative guidance and creative judicial interpretation is forthcoming, Article 14 DSA holds the potential to serve as a normative basis for ensuring stronger protection of user rights to benefit from copyright exceptions to quotation and parody. Social media platforms form a core component of the contemporary digital public sphere and constitute essential infrastructures for public discourse (Dolata, 2019, p.185). Thus, preserving the freedom of expression of social media platform users to engage in social commentary and critique through transformative uses of in-copyright content (e.g., quotation, parody) is vital for preserving and promoting the participatory democratic process within the EU. It is earnestly hoped that in the coming months and years, the EU will demonstrate the necessary legislative will and judicial initiative for achieving this goal. For the moment, we can but ‘wait and see’.