Monitoring and Filtering: European Reform or Global Trend?

2020 ◽  
pp. 543-565 ◽  
Author(s):  
Giancarlo Frosio ◽  
Sunimal Mendis
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Eu Directive ◽  
Global Trend ◽  
Industry Practice ◽  
Eu Copyright Law ◽  
Enforcement Mechanisms ◽  
Intermediary Liability ◽  
Fundamental Rights And Freedoms ◽  
Proactive Monitoring

This chapter analyses the evolution of a trend towards the imposition of proactive monitoring obligations on intermediaries along the entire spectrum of intermediary liability subject matters and focuses on the recent EU copyright law reform. Article 17 of the newly enacted EU Directive on copyright in the Digital Single Market has come under fire for the heightened level of liability it imposes on online services providers (OSPs) for copyright-infringing content stored or transmitted by them. Based on an analysis of case law from multiple jurisdictions and an overview of industry practice, this chapter seeks to locate the new European reform within a much wider global trend that aims to impose proactive monitoring and filtering obligations on OSPs. It argues that the impetus for the introduction of Article 17 is rooted in the ‘internet threat’ discourse and reflects a gradual shift in the perception of OSPs from being ‘mere conduits’ to ‘active gate-keepers’ of content uploaded and shared by users. Following an evaluation of the extent to which Article 17 diverges from the existing intermediary liability framework in the EU, the chapter concludes by analysing its potential impact on users’ fundamental rights and freedoms, particularly in the light of its propensity to motivate wider use of automated filtering systems and algorithmic enforcement mechanisms.

scholarly journals Developments in family reunification cases before the CJEU

2019 ◽  
Vol 3 (2) ◽  
pp. 6-17
Author(s):  
Réka Friedery
Keyword(s):  
Family Life ◽  
Case Law ◽  
Family Reunification ◽  
Fundamental Rights ◽  
Eu Directive ◽  
Council Directive ◽  
Charter Of Fundamental Rights ◽  
European Standards ◽  
The Right ◽  
The Eu

Family reunification is defined by primary and secondary EU law and by the case law of the CJEU. The cornerstones are the Charter of Fundamental Rights encompasses the principle of the respect of family life and the fundamental European standards for family reunification of third-state nationals are based in the Council Directive on the Right to Family Reunification. The EU directive explicitly confirms among others that family reunification is a necessary way of making family life possible. The article analyses the way the jurisdiction of the CJEU widens the notion of family reunification and how it offers more realistic picture for the growing importance of family reunification.

Religious Symbols in Spain: A Legal Perspective

2009 ◽  
Vol 11 (2) ◽  
pp. 181-193 ◽  
Author(s):  
Santiago Cañamares Arribas
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Religious Symbols ◽  
Spanish Constitution ◽  
Legal Perspective ◽  
Fundamental Rights And Freedoms ◽  
Conflictual Situation

In Spain, immigration has been one of the main reasons for a significant number of conflicts regarding the use of religious symbols. In this context, the fundamental rights and freedoms enshrined in the Spanish Constitution are expected to play a very important role as a criterion to solve these tensions. However, a more accurate response is provided by case law, where the variety of circumstances that surround each conflictual situation can be taken into account to reach the best solution.1

scholarly journals Romania: derogation from the European Convention on Human Rights – freedom of expression during public emergency

2021 ◽  
pp. 39-54
Author(s):  
Mónika Márton
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
The State ◽  
Fundamental Rights ◽  
European Convention ◽  
State Of Emergency ◽  
European Court ◽  
Public Emergency ◽  
Fundamental Rights And Freedoms

A pandemic can provide a textbook example for the restrictions of fundamental rights and freedoms. Romania has decided to derogate from the application of the European Convention on Human Rights during the state of emergency caused by the COVID-19 pandemic. The questions discussed in this paper are whether the derogation of Romania fulfils the criteria established by the case-law of the European Court of Human Rights. If the answer is affirmative: does it have any effect on the inherent limitations on the freedom of expression as stated in art. 10 of ECHR?

scholarly journals To Filter or Not to Filter? That Is the Question in EU Copyright Reform

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fundamental Rights ◽  
Digital Environment ◽  
Negative Externalities ◽  
Liability Rule ◽  
The Public ◽  
Alternative Proposal ◽  
Intermediary Liability ◽  
The Eu

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure their functioning by taking effective technological measures — such as content id technologies — to prevent copyright infringement on online platforms. This proposal is included in Article 13 — and accompanying Recitals — of the European Commission’s Draft Directive on Copyright in the Digital Single Market of September 14, 2016, which forms an important part of the ongoing EU copyright reform. This article highlights the shortcoming of this proposed reform, which might fall short in terms of clarity, consistency with the EU acquis, appropriacy and proportionality. In doing so, the article discusses recent CJEU case law — such as GSMedia, Ziggo and Filmspeler — struggling with the notion of communication to the public in the digital environment. It highlights systemic inconsistencies between the traditional knowledge-and-take-down negligence-based intermediary liability system and the introduction of filtering and monitoring obligations. The article examines the appropriacy of filtering — and monitoring — measures within a fundamental rights perspective by considering proportionality between property rights’ enforcement and competing fundamental rights — such as freedom of expression, freedom of business and privacy. The critical review of the proposed reform serves as an opportunity to briefly advance an alternative proposal seeking a more pragmatical engagement with technological change through an arrangement enforcing a liability rule or an apportionment of profits and producing value for creators out of platform economy’s virality, while limiting negative externalities on users’ rights.

Twenty years later: Application of the Charter of Fundamental Rights of the European Union as an Anthropocentric and Innovative Document

2021 ◽  
Vol 23 (129) ◽  
pp. 23
Author(s):  
Angelo VIGLIANISI FERRARO ◽  
Goran Ilik
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Legal Obligation ◽  
Eu Law ◽  
The European Union ◽  
Charter Of Fundamental Rights ◽  
Fundamental Rights And Freedoms ◽  
The Guardian ◽  
The Eu

The paper analyzes the legal content and scope of the norms of the Charter of Fundamental Rights of the EU and their meaning and application as a para-constitutional document of anthropocentric and innovative nature in the last twenty years. Special attention is paid to the place and role of the CJEU as a judicial body in charge of implementing and harmonizing EU law. The article also deals with the possibility of direct application of the norms of the Charter, both vertically and horizontally. In addition, the paper cites the CJEU case law to confirm the thesis that it must undertake a moral and legal obligation in order to impose itself not only as a creator of legal doctrines but also as the guardian of the fundamental rights and freedoms of the EU.

13. Copyright and Related Rights Exceptions and Limitations

2019 ◽  
pp. 310-340
Author(s):  
Justine Pila ◽  
Paul L.C. Torremans
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Central Theme ◽  
The European Union ◽  
Growing Body ◽  
Exceptions And Limitations ◽  
Charter Of Fundamental Rights ◽  
Fundamental Rights And Freedoms ◽  
Article 5 ◽  
Domestic Law

This chapter concludes the discussion of European copyright and related rights law by considering the exceptions and limitations permitted (and potentially, required) by Article 5(2) to (4) of the Information Society Directive. A central theme is the increasing challenge being presented to domestic law- and decision-making by the EU law of fundamental rights, including the growing body of EU case law regarding the implications of the Charter of Fundamental Rights and Freedoms of the European Union for the scope and enforcement of copyright and related rights and the coherence and consistency of the emerging jurisprudence in this area.

scholarly journals Data eetention in CJEU Case Law

2020 ◽  
Vol 54 (4) ◽  
pp. 1231-1252
Author(s):  
Tatjana Bugarski ◽  
Milana Pisarić
Keyword(s):  
Personal Data ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Data Retention ◽  
Electronic Communications ◽  
Member States ◽  
Court Of Justice ◽  
Fundamental Rights And Freedoms ◽  
The Right

Possession of accurate, complete and reliable relevant data on electronic communications traffic and timely access of authorized competent state bodies to such data is without a doubt a useful tool in the fight against modern forms of crime. For that reason, it is justified to establish an obligation for providers of electronic communications services to keep certain data on communications for a certain period of time in the realization of which they mediate and to hand over that data at the request of authorized state bodies, in order to use them for legitimate purposes. For this reason, the Data Retention Directive was adopted in 2006, which Member States were required to transpose into national law. However, data retention poses a risk to basic human rights and freedoms, if the regulation establishing this obligation does so without respecting the essence of these rights and freedoms, especially the right to privacy and rights related to the processing of personal data, for which reason the Court of Justice of the European Union declared the Directive invalid is 2014. Despite this decision, Member States continue to regulate the obligation to retain data in their national regulations. In this regard, the question of compliance of these regulations with the fundamental rights and freedoms and principles of the Union is raised. The subject of the paper is the analysis of the case law of the Court of Justice of the EU on this issue after the annulment of the Data Retention Directive.

scholarly journals The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters

2017 ◽  
Author(s):  
Giancarlo Frosio
Keyword(s):  
Due Process ◽  
Freedom Of Expression ◽  
Strict Liability ◽  
Single Market ◽  
Fundamental Rights ◽  
Market Strategy ◽  
Online Platforms ◽  
Legislative Proposals ◽  
Intermediary Liability ◽  
Proactive Monitoring

In imposing a strict liability regime for alleged copyright infringement occurring on YouTube, Justice Salomão of the Brazilian Superior Tribunal de Justiça stated that “if Google created an ‘untameable monster,’ it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.” In order to tame the monster, the Brazilian Superior Court had to impose monitoring obligations on YouTube. This was not an isolated case. Proactive monitoring and filtering found their way in the legal system as a privileged enforcement strategy through legislation, judicial decisions and private ordering. In multiple jurisdictions, recent case law has imposed proactive monitor obligations on intermediaries. These cases uphold proactive monitoring across the entire spectrum of intermediary liability subject matters: intellectual property, privacy, defamation, and hate/dangerous speech. In this context, however, notable exceptions—such as the landmark Belen case in Argentina—highlight also a fragmented international response. Legislative proposals have been following suit. As part of its Digital Single Market Strategy, the European Commission, would like to introduce filtering obligations for intermediaries to close a “value gap” between rightholders and online platforms allegedly exploiting protected content. In addition, proactive monitoring and filtering obligations would also feature in an update of the European audio-visual media legislation. Meanwhile, online platforms have already set up miscellaneous filtering schemes on a voluntary basis.In this paper, I suggest that we are witnessing the death of “no monitoring obligations,” a well-marked trend in intermediary liability policy. Current Internet policy—especially in Europe—is silently drifting away from a fundamental safeguard for freedom of expression online. In this respect, this paper would like to contextualize this trend within the emergence of a broader move towards private enforcement online. The EU Digital Single Market Strategy apparently endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. As I argued elsewhere, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention. In addition, filtering and monitoring will be dealt almost exclusively by intermediaries through automatic infringement assessment systems. Due process and fundamental guarantees get mauled by algorithmic enforcement, limiting enjoyment of exceptions and limitations, use of public domain works, and silencing speech according to the mainstream ethical discourse. The upcoming reform—and the border move that it portends—might finally slay “no monitoring obligations” and fundamental rights online, together with the untameable monster.

scholarly journals Topical Issues of the Application of the Case-Law of the European Court of Human Rights in the Criminal Process of Ukraine

2020 ◽  
Vol 9 (29) ◽  
pp. 6-14
Author(s):  
Viacheslav Viktorovich Shamrai ◽  
Yuliia Yuriivna Ivchuk ◽  
Vladislav Yegorovich Tarasenko ◽  
Hlib Omelianovych Fedorov
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Public Authorities ◽  
Criminal Process ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Fundamental Rights And Freedoms ◽  
The Right

The purpose of the article is to identify and analyze topical issues of the application of the case-law of the European Court of Human Rights (hereinafter - ECtHR) in the context of the implementation of the current criminal procedural legislation of Ukraine. To achieve this purpose, the authors have studied the scientific positions of the lawyers, the relevant provisions of the current legislation of Ukraine, the requirements of international legal acts and the case-law of the ECtHR. The general provisions of the criminal process science were methodological basis of the study. The authors of the article used the following methods of scientific knowledge: systematic, logical, semantic, comparative and documentary analysis. The place of the case-law of the ECtHR in the system of national legislation has been clarified, in particular the decisions of this Court are binding throughout Ukraine, and national courts have to apply the case-law of the ECtHR as a source of law. It is argued that the right of Ukrainian communities to seek the protection of their rights and freedoms under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - ECHR) is an additional guarantee against arbitrariness of the public authorities and officials who violated or restricted them. It was stated that even after implementation of the universally recognized norms and principles of international law in the sphere of protection of human rights and freedoms into current criminal procedural legislation of Ukraine, the facts of their violation occur. This, in turn, leads to the adoption of the ECtHR decisions against Ukraine, in which 90% of cases state violations of fundamental rights and freedoms guaranteed by the ECHR.

scholarly journals Declaration of Tax Information in Constitutional Court Cases in the Czech Republic

2019 ◽  
Vol 4 (1) ◽  
pp. 58-70
Author(s):  
Tomáš Sejkora
Keyword(s):  
Czech Republic ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Court Cases ◽  
The Czech Republic ◽  
Scientific Methods ◽  
Charter Of Fundamental Rights ◽  
Fundamental Rights And Freedoms ◽  
Law And Legislation

This contribution is focused on the trend to demand various declaration of taxable persons via specific forms issued based only on the wide and vague authorisation of the Ministry of Finance of the Czech Republic. The aim of this paper is to familiarise readers with the relevant Czech regulation and case law of the Czech Constitutional Court and to provide conclusions evaluating this case law and legislation. The beginning of this paper is devoted to respective provisions of the Tax Procedure Code, Charter of Fundamental Rights and Freedoms, Act on VAT and Act on Transactions evidence. Then, the part dealing with the development of the Constitutional Court approach evaluating the practice of the tax administration follows. Finally, the author provides his conclusions estimating future development in this issue. Scientific methods used in this paper are analysis, induction, deduction and description. The aim of the contribution is therefore the evaluation how the recent case law will affect the current legislation and what steps should be made by the Czech Parliament.

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