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    European legislator tries to tighten its grip on online platforms

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  • At European level, a lot of initiatives are emerging to get control over online platforms and content. In the beginning of 2018, the EU announced its battle against ''fake news''. Shortly after, agreement was reached in relation to the revised Audiovisual Media Services Directive, which now also applies to ''video sharing platforms''. Also, the European Parliament agreed last month to measures containing an upload filter for content. Below are the developments from a bird's eye view.

    Battle against fake news

    In the beginning of 2018, the EU included online platforms in the battle against ''fake news'' and ''disinformation''. As these platforms play a key role in distributing disinformation, the EU urged them to start self-regulation on this topic. The EU stated that if self-regulation would not be realised, it would start drafting binding regulations. It turns out that this approach was successful. Several online platforms started self-regulation and have drafted a ''Code of Practice on Disinformation'', to which Google, Facebook and other big platforms have already committed themselves. 

    Regulations for YouTube and other video sharing platforms

    Soon, YouTube and other providers or online platforms that enable users to post videos, will fall under the scope of the revised Audiovisual Media Services Directive. Among other things, they will then have  to ensure the protection of underage users against harmful or immoral content, and against specific types of content (like child pornography or content that provokes hate or violence against groups, content publicly provoking to commit terrorist attacks or content that has a racist or xenophobic character). Besides that, the platforms will be subject to rules regarding advertising and other commercial communication.

    Upload filter

    In September, agreement was reached on a regulation that requires internet platforms to take effective measures to act against copyright infringements. Platforms like Twitter and Facebook are free to decide in which way they will screen the content provided by their users on copyrights.

    The abovementioned measures are a victory for publishers and the 30.000 musicians and text writers who lobbied for these measures at the European Parliament. They hope that the measures will urge online platforms to conclude licensing agreements with the copyright owners, resulting in higher copyright fees for the copyright owners. 

    The measures are controversial though. Critics fear that licensing agreements will never be realised and that, since users are uploading content on a very large scale, platforms will choose to apply an upload filter instead. With such a filter, texts, music, pictures and videos can be saved in a database, after which an internet platform can compare all the content that users are uploading with the content in the database. Google already applies a filter like this in relation to YouTube and offers its clients to choose to either cooperate with its system or to remove their content. 

    A disadvantage of upload filters is that they are usually not able to apply any nuances. Parodies, quotes or memes are not always recognized by an upload filter. Also scientific articles and literary reviews can "get stuck" in the upload filter. Moreover, upload filters cannot see who the copyright owner is and whether its permission is required (or already given). 

    Consequences for the freedom of information

    Of all recent EU regulations regarding online platforms, the measures concerning the controlling of copyright infringements are the most far-reaching. The expectation is that these measures will make platforms install upload filters, and that the intended goal – generating increasing copyright fees for the copyright owners – will not be reached. Besides that, the possibility exists that mentioned measures containing upload filters will result in an erosion of content uploaded to the internet and an erosion of the freedom of information.

    It would be good if these consequences will be taken into account during further negotiations (between the European Commission and the governments of Member States) that will now follow and that are expected to lead to a final agreement in 2019. 

    Impact on your organisation?

    Would you like to know more about the consequences of the new European rules, for example concerning your organization? Please contact Kriek Wille or one of the other members of our TMT- or Intellectual Property team.