Delfi v Estonia: Curtailing online freedom of expression?

Lorna Woods, Professor of Media Law, University of Essex

When can freedom of expression online be curtailed? The recent judgment of the Grand Chamber of the European Court of Human Rights in Delfi v. Estonia has addressed this issue, in the particular context of comments made upon a news article. This ruling raises interesting questions of both human rights and EU law, and I will examine both in turn.

The Facts

Delfi is one of the largest news portals in Estonia. Readers may comment on the news story, although Delfi has a policy to limit unlawful content, and operates a filter as well as a notice and take down system. Delfi ran a story concerning ice bridges, accepted as well-balanced, which generated an above average number of responses. Some of these contained offensive material, including threats directed against an individual known as L. Some weeks later L requested that some 20 comments be deleted and damages be paid. Delfi removed the offending comments the same day, but refused to pay damages. The matter then went to court and eventually L was awarded damages, though of a substantially smaller amount than L originally claimed. Delfi’s claim to be a neutral intermediary and therefore immune from liability under the EU’s e-Commerce Directive regime was rejected. The news organisation brought the matter to the European Court of Human Rights and lost the case in a unanimous chamber decision. It then brought the matter before the Grand Chamber.

The Grand Chamber Decision

The Grand Chamber in essence, affirmed the outcome and the reasoning of the chamber judgment in the same case, albeit not unanimously. It commenced by re-capping the principles of Article 10 of the European Convention on Human Rights from its previous case law. These are familiar statements of law, but it seems that from the beginning of its reasoning the Grand Chamber had concerns about the nature of content available on the internet. It commented:

while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of personality rights. [110]

The Grand Chamber then referred to certain Council of Europe Recommendations, suggesting:

a “differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe” (see § 7 of the Appendix to Recommendation CM/Rec(2011)7, ..). Therefore, the Court considers that because of the particular nature of the Internet, the “duties and responsibilities” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content. [113]

The Grand Chamber applied the principles of freedom of expression to the facts using the familiar framework. First there must be an interference with the right under Article 10(1) of the Convention, then any restriction should be assessed for acceptability according to a three stage test. The test requires that the restriction be lawful, achieve a legitimate aim and be necessary in a democratic society. The existence of a restriction to freedom of expression was not disputed, and nor that the Estonian rules pertained to a legitimate aim. Two areas of dispute arose: lawfulness and necessary in a democratic society.

Lawfulness

Lawfulness means that the rule is accessible to the person concerned and foreseeable as to its effects. Delfi argued that it could not have anticipated that the Estonian Law of Obligations could apply to it, as it had assumed that it would benefit from intermediary liability derived from the e-Commerce Directive. The national authorities had not accepted this classification, so essentially Delfi argued that this was a misapplication of national law. The Grand Chamber re-iterated (as had the chamber) that it is not its task to take the place of the domestic courts but instead to assess whether the methods adopted and the effects they entail are in conformity with the Convention. On the facts, and although some other signatory states took a more “differentiated and graduated approach” as suggested by the Council of Europe recommendation, the Grand Chamber was satisfied that it was foreseeable that the normal rules for publishers would apply. Significantly, the Grand Chamber commented, in an approach similar to that of the First Chamber that:

as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. [129]

Necessary in a Democratic Society

The Grand Chamber started its analysis by re-iterating established jurisprudence to the effect that, given the importance of freedom of expression in society, necessity must be well proven through the existence of a ‘pressing social need’. It must determine whether the action was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. The Grand Chamber also emphasised the role of the media, but also recognised that different standards may be applied to different media. Again it re-iterated its view that the Internet could be harmful, as well as beneficial ([133]). The Grand Chamber then travelled familiar terrain, stating the need to balance Articles 8 and 10 and approving the factors that the First Chamber took into account: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and the consequences of the domestic proceedings for the applicant company ([142-3]).

Here, the Grand Chamber emphasised the content of the comments: that they could be seen as hate speech and were on their face unlawful [153] and that given the range of opportunities available to anyone to speak on the internet obliging a large news portal to take effective measures to limit the dissemination of hate speech and speech inciting violence was not ‘private censorship’. ([157]) The idea that a news portal is under an obligation to be aware of its content is a key element in the assessment of proportionality. Against this background (rather than one which accepts the notice and take down regime as enough), Delfi’s response had not been prompt. Further, ‘the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments’ [158]. In the end, the sum that Delfi was fined was not large, and the consequence of the action against the news portal was not that Delfi had to change its business model. In sum, the interference could be justified.

There were two concurring judgments, and one dissent. Worryingly, one of the concurring judges (Zupančič), having criticised the possibility of allowing anonymous comments, argued:

To enable technically the publication of extremely aggressive forms of defamation, all this due to crass commercial interest, and then to shrug one’s shoulders, maintaining that an Internet provider is not responsible for these attacks on the personality rights of others, is totally unacceptable.

According to the old tradition of the protection of personality rights, …, the amount of approximately EUR 300 awarded in compensation in the present case is clearly inadequate as far as damages for the injury to the aggrieved persons are concerned.

Human Rights Issues: Initial Reaction

This is a long judgment which will no doubt provoke much analysis. Immediate concerns relate to the Court’s concern about the Internet as a vehicle for dangerous and defamatory material, which seems to colour its approach to the Article 10(2) analysis and, specifically, to the balancing of Articles 10 and 8. In recognising that the various forms of media operate in different contexts and with different impact, the Grand Chamber has not recognised the importance of the role of intermediaries of all types (and not just technical intermediaries) in providing a platform for and curating information. While accepting that the internet may give rise to different ‘duties and responsibilities’, it seems that the standard of care required is high.

Indeed, the view of the portal as having control over user generated content seems to overlook the difficulties of information management. The concurring opinions go to great length to say that a view which requires the portal only to take down manifestly illegal content of its own initiative is different from a system that requires pre-publication review of user generated content. This may be so, but both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted). Indeed, the dissenting judges say that there is little difference here between this requirement and blanket prior restraint (para 35). Both approaches implicitly reject notice and take down systems, which are used – possibly as a result of the e-Commerce Directive framework – by many sites in Europe. This focus on the content has led to reasoning which almost reverses the approach to freedom of expression: speech must be justified to evade liability. In this it seems to give little regard neither to its own case law about political speech, nor its repeated emphasis on the importance of the media in society.

EU law elements: consistency with the e-commerce Directive?

The Delfi judgment raises some practical questions for news sites hosting third party content, especially reader comments.  An underlying concern is how this judgment fits with the EU policy approach towards the Internet and intermediaries in particular.  The eCommerce Directive provides, inter alia, for the limitation of liability for intermediaries, in articles 12-15.  These provisions were considered important, not just for the free flow of services through the EU, but support to the development of the Internet and service offered on it.  The eCommerce Directive envisages three categories of intermediary – those which are mere conduits, those which offer caching and those which host content.  The essential quality of these intermediaries is that they were facilitators via technical services rather than contributing to the provision of specific content.  It is the scope of this last category that is uncertain, especially given the development of a range of services which challenge the understanding of the Internet as it stood at the time of the enactment of the directive.  Following the first chamber decision, there was some concern that the judgment did not respect the underlying policy choice about intermediaries, nor reflect the significance of the role of intermediaries for the functioning of the Internet, especially from the perspective of end-users.  The question is how out of line, if at all, is the judgment with the Directive?

The first thing to note before we look at the substance is that the Strasbourg Court was not making the decision about whether Delfi was a neutral or passive intermediary or not.  The Court was rather reviewing the impact of the Estonian court’s reasoning.  In sum, it is far from clear that the court was unreasonable – bearing in mind the current jurisprudence from the European Court of justice – in accepting the Estonian court’s end conclusion (even if we might be critical about some points of its reasoning).

The intermediary liability provisions provide a graduated scale of protection, with the greatest protection going to services that are the most technical.  For hosting services, protection is dependent on lack of knowledge of the offending content.  There have been questions about the interpretation of some of the phrases in Article 14(2) of the Directive, such as ‘awareness’, ‘actual knowledge’ and obligation to act expeditiously’. The Directive envisages notice and take down regimes as a way to deal with offending content. Articles 14 and 15 do not affect Member States’ freedom to require hosting service providers to apply those duties of care that can reasonably be expected from them and which are specified by national law in order to detect and prevent certain types of illegal activities. (recital 48) Article 15 prevents Member States from imposing on internet intermediaries, with respect to activities covered by Articles 12 to 14, a general obligation to monitor the information they transmit or store or a general obligation to actively seek out facts and circumstances indicating illegal activities.  Article 15 does not prevent public authorities inthe Member States from imposing a monitoring obligation in a specific, clearly defined individual case (recital 47). It is implicit in the foregoing, that Article 15 only applies to intermediaries which can claim the benefit of one of Articles 12, 13 or 14.

A number of cases have been brought before the European Court of Justice to understand better the scope of Article 14, and the extent of the protection in Article 15. For example, SABAM v Netlog (Case C-360/10) concerned a social networking site which received a request from SABAM, the Belgian copyright society, to implement a general filtering system to prevent the unlawful use of musical and audio-visual work by the users of its site.  In addition to confirming the prohibition in Article 15 on monitoring, the ECJ noted that a filter might not be able to distinguish between lawful and illegal content, thus affecting users’ freedom of expression (access to information).  In this the ECJ seems to be reflecting the position the ECtHR took in Yildirim, regarding ‘collateral censorship’.  There is a limitation on carrying the ideas in Netlogacross to Delfi in that the rules in Article 15 apply to neutral intermediaries and it is unclear whether the ECJ would find a news site to be neutral in this sense, whether because of the agenda-setting function which ‘invites’ particular responses, or because of the adoption of filtering and moderation systems.

In the Google Adwords case (Joined Cases C-236/08, C-237/08 and C-238/08, judgment 23^rd March 2010), the ECJ held that the test for whether a service provider could benefit from Article 14 ECD was whether it was ‘"neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores"’ (para 114).  One could argue that, insofar as a site invites comment on a particular topic, it is not neutral though one might question how overt that invitation might be. In L’Oreal (Case C-324/09, judgment 12 July 2011), the Court held that the Article 14 exemption should not apply where the host plays an "active role" in the presentation and promotion of offers for sale posted by its users so as to give it knowledge of, or control over, related data.  Further, if a host has knowledge of facts that would alert a "diligent economic operator" to illegal activity, it must remove the offending data to benefit from the Article 14 exemption.  We might question what the role of moderation and filters are in this context specifically in terms of giving an intermediary control over content.  As regards the Delfi case itself, there are arguably parallels between the ECJ and ECtHR approaches in that both courts seem to think that those acting in the course of their business are in a better place to assess where and when problems might arise.  A point of difference relates to the views of commercial activities. The ECJ argued in Google Adwords:  

It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31. [116]

The reference to ‘general information’ also suggests that contributors’ policies would not be determinative either.

Applying the tests found in L’Oreal v. eBay and Google Adwords in Papasavvas v O Fileleftheros, a case concerning on-line defamation in relation to a news story posted by a newspaper on its site (which I discussed earlier here), the ECJ ruled:

Consequently, since a newspaper publishing company which posts an online version of a newspaper on its website has, in principle, knowledge about the information which it posts and exercises control over that information, it cannot be considered to be an ‘intermediary service provider’ within the meaning of Articles 12 to 14 of Directive 2000/31, whether or not access to that website is free of charge. [45]

There are some similarities to the Strasbourg court’s reasoning, in that both courts point to the idea about control over information.  There are differences, however, in that the control over the defamatory material in Papasavvas was much more direct than in Delfi, and the predictive abilities of newspapers about their audience’s response to stories not in issue.  Nonetheless, it is far from clear that the ECJ would reject the agenda-setting argument the Strasbourg court used, especially given its reasoning in L’Oreal regarding the ‘promotion’ of particular content and the requirements of a diligent economic operator.

The Strasbourg court’s reasoning put Delfi in a position of effectively having to monitor user content.  Had Delfi been found to be an intermediary in the sense of Articles 12-14, this would have been contrary to Article 15 of the eCommerce Directive, as implemented in domestic law.  Given that Delfi was found not to be such an intermediary, then Article 15 does not come into play. It also seems that this finding is not unlikely under EU law.  There is then no automatic conflict between this ruling and the position under EU law.  Whether this outcome is desirable from an Internet policy perspective is another matter.  This case and its consequences may then feed into the review of intermediaries that the EU Commission is planning as part of its Digital Single Market strategy.

*Part of this post was previously published on the LSE Media Policy Project blog

Barnard & Peers: chapter 9

Photo credit: speech-rights-and-restrictions.weebly.com

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Bringing Data Protection Home? The CJEU rules on data protection law and home CCTV

 

Lorna Woods, Professor of Law, University of Essex

 

Does EU data protection law apply to home CCTV cameras? The CJEU addressed that issue yesterday in the judgment in Case C-212/13 Ryneš v. Úřad pro ochranuosobníchúdajů. In its judgment, the Fourth Chamber of the Court agrees with the Advocate-General's  opinion (discussed here), although it avoids some of the difficult questions hinted at in that opinion.

This judgment is significant in two ways. First, it has potentially broader application than just to fixed surveillance devices and could indicate the way data recording devices are used in public spaces even by private individuals.  Second, it forms part of a train of judgments highlighting the significance of data protection for individuals. This significance is perhaps reflected in the fact that eight member States made submissions before the court.

 

Facts

Mr Ryneš and his family had for several years been subjected to attacks by persons whom it had not been possible to identify and the windows of the family home had been broken on several occasions.  As a result, he installed CCTV cameras under the eaves of his house.  The camera was installed in a fixed position and could not turn; it recorded the entrance to his home, the public footpath and the entrance to the house opposite.  The images were recorded to hard drive, and subsequently over-written by new recordings.  A further attack took place but it was possible to identify the suspects because of the CCTV.  The recording was handed over to the police and relied on in the course of the subsequent criminal proceedings.  One of the suspects challenged the use of CCTV in this way: arguing that Mr Ryneš had not complied with the Czech rules implementing the EU Data Protection Directive (DPD). Mr Ryneš essentially argued that the matter did not come within the DPD because of the application of the ‘household exception’ in Article 3(2) DPD. It was the scope of that provision that was referred to the CJEU by the national court.

 

Judgment

The Court began by confirming that CCTV surveillance in principle constitutes the processing of personal data so far as it makes it possible to identify the person concerned [paras 22-25].  The Court then turned its attention to the question of whether the situation escaped the application of the DPD in so far as it is carried out ‘in the course of a purely personal or household activity’ for the purposes of the second indent of Article 3(2) DPD.

The Court emphasised that the purpose of the DPD is to ensure a high level of protection for personal data – seen as part of an individual’s privacy and in so doing referred to Google Spain and Google (C‑131/12), and that, following IPI (C‑473/12, para 39) and Digital Rights Ireland and Others(C‑293/12 and C‑594/12, para 52) restrictions on data protection must apply on so far as strictly necessary [para 28].  Further, the DPD must be construed in the light of the Charter. These factors meant that Article 3(2) DPD should be construed narrowly [para 29]. In the Court’s view this approach followed also from the wording of Article 3(2) in any event: the use of the word ‘purely’ indicates a narrow range of circumstances. Following the reasoning of the Advocate General, the Court held that:

‘To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity for the purposes of the second indent of Article 3(2) of Directive 95/46.’ [para 33]

While the DPD applies, the Court noted the possibility of the data controller’s legitimate interests and other possible exceptions in the Directive being taken into account [para 34] although the Court did not elaborate further on such balancing in this instance.

 

Comment

This case is not the first case that has considered the scope of the ‘household exception’: Lindqvist (C-101/01) was the first, which held that the ‘household exception’ did not apply to the posting of information on a web site. According to the Court then, the exception clearly did not apply because the making available of information to an indefinite number of people was not an activity carried out in the course of the private or family life of an individual.  The reasoning here is not clear, and is replete with assumptions (what is the position of an on-line personal diary, for example?). It is perhaps because of the lack of clarity that the Court here did not cite Lindqvist– a rather noticeable omission otherwise.  Rather it, like the Advocate-General before it, went back to first principles about the value and status of data protection. This is the beginning of a stream of data protection cases – arising in very different circumstances – in which the Court has repeatedly ascribed a high value to data protection and the protection of privacy. These cases then should be seen not as isolated, but as part of consistent body of rulings on this point.  What was clearer from the Opinion in this case was the fact that this high value ascribed to the protection of personal data applies as between individuals, as well as constraining the activities of the State.

 

While it might be standard practice to view exceptions as to be construed narrowly, the Court does not give us much information as to how to define this in practice. What we have instead is the assertion that something that impinges on a public space cannot be ‘purely’ private. Balancing of interests takes place as a consequence within the framework of the DPD, essentially by virtue of Article 7(f)DPD, which allows data processing to take place in the legitimate interests of the data controller (in this case, the homeowner interested in protecting his security), balanced against the interests of the data subject (the criminal suspects in this case), rather than by determining whether the DPD applies or not.  This approach probably allows for a more subtle approach to the question of respective interests, although as Article 29 Working Party (the advisory body made up of national data protection supervisors) have noted there is not much consistency across the Member States on how to interpret Article 7(f) DPD (Opinion 06/2014).  There has been concern that, given the openness of its wording, Article 7(f) could be used to undermine the effectiveness of data protection.  Here, presumably protection of private property would weigh heavily (the Article 29 Working Party give security as an example of a ‘legitimate interest’), though the balancing of interests might be different in the context of someone passing in the street and someone visiting the house opposite.

 

This then leads us to the question of when else the principles in Ryneš might apply.  The obvious example is devices capable of recording personal data in public spaces. In addition to CCTV, drones and body worn video used by local authorities and the police in the law enforcement context, we should think here about mobile phones with cameras and devices such as Google glass, which have already been flagged up as potentially problematic in regulatory terms. While Google may have taken steps to improve privacy by design in this device, this does not absolve users from responsibility under the data protection regime if it applies to them.  If we take the approach that even partial public use of a fixed CCTV system cannot benefit from the household exception, still less would a portable, possibly inconspicuous device the purpose of which is uncertain.  The reasoning seems stronger still if we consider the possible onward use of such data – via a website for example (though note the Article 29 Working Party’s view on social networking sites in Opinion 5/2009)– taking into account the view in Lindqvist.  Here it is less clear to see that the legitimate interests of the data controller (ie the person using the device to record and store personal data),assuming the processing were to be deemed ‘necessary’ to pursue that interest, would weigh heavily against a high level of protection for data protection even as between individuals (see views of Article 29 Working Party on freedom of expression arguments in this context).

 

How might this judgment apply to specific cases? A parent would have a legitimate interest in photographing or filming his or her children or friends, although there might be constraints (taking account of the Peck v UK judgment of the European Court of Human Rights, where Article 8 ECHR was breached after CCTV footage of an attempted suicide was shown on national television) on how much such footage might be shared in future. Indeed, broad sharing of those images (for example uploading to a website without privacy protection as in Lindqvist) could constitute an act of processing outside the household exception, which should therefore comply with DPD requirements too.  Photographs taken within the context of private and family life but then used by journalists presumably also fall within the scope of the Directive, although in that case the relevant provision would be the rather general clause which provides for balancing the right to privacy and the freedom of expression.

 

CCTV cameras which fully face public streets and areas open to the public like shopping malls are obviously covered by the Directive, so processing must comply with the requirements of Article 6 of the Directive unless any other exceptions are applicable. CCTV used in workplaces would obviously not fall within the scope of the household exception, so the requirements of the DPD regarding processing would apply. Depending on the nature of the footage there would be further limits on sharing that footage (images of hospital patients, for instance, would reveal sensitive data about their health). Finally, there might be hybrid locations which are both public and private (for instance, a care home is both a residence and a workplace). Given that the Court has emphasised the household exception arises only when the processing can be tied ‘purely’ to private and family life hybrid locations are unlikely to be considered within the household exception.  In the example of the care home, this is especially likely to be true given that the data controller is likely to be the operator of the care home using CCTV for operational reasons, rather than private ones. Of course, it would still be possible to justify the use of CCTV in such cases in accordance with the Directive.

 

Barnard & Peers: chapter 9

 

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‘The Right to be Forgotten’: The future EU legislation takes shape

Steve Peers

The furore over the ‘right to be forgotten’ in EU data protection law focusses, obviously enough, on the CJEU’s judgment in Google Spain, which obliquely referred to such a right, by means of interpreting the EU’s existing data protection Directive. But in principle the Court’s ruling might have limited impact, since the EU is embarked upon a lengthy process to replace that Directive.

The initial proposal for a new General Data Protection Regulation was tabled by the Commission at the start of 2012, and the European Parliament (EP) voted its opinion on the proposal this spring. For its part, the Council (Member States’ justice ministers) is moving more slowly. So far, it has only agreed its position on the external relations aspects of this proposal. But following the delivery of the Google Spain judgment this spring, it has turned its attention to the right to be forgotten.

The Council had initially discussed this issue in 2012-13 (see a record of those talks here). It then paused to wait for the Court’s judgment. Following that ruling, the incoming Italian Council Presidency then resumed discussions on the issue in July, and tabled a revised version of its proposal a couple of weeks ago. The Council has not yet agreed on this issue (see the Member States’ positions here), and in any event, once the Council has adopted its position on the entire proposal, it would still have to negotiate with the EP.

However, there seems to be an emerging consensus in the Council. Given the importance of the issue, which has attracted more public interest than any EU law issue in the last few months, it’s worth examining where the discussions are going.

First, of all, it should be recalled that the Council has already agreed that search engines like Google, and possibly many other Internet companies not based in the EU, will be subject to the new Regulation, when it agreed on the external relations rules in the proposal.

As for the ‘right to be forgotten’ itself, it’s in Article 17 of the proposed Regulation. The Commission initially proposed that the data subject could exercise the right (which is combined with the current right of erasure) against the original data controller, on one of four grounds: the data are no longer necessary; the data subject withdraws consent or when the storage period has expired; the data subject objects to the processing on specified grounds; or the processing is no longer valid on some other ground. The data controller had to inform third parties of any request to exercise that right.

In this initial proposal, there would be exemptions from the right on grounds of: freedom of expression; public health; historical, scientific or statistical research; compliance with a national or EU legal obligation; or cases where access to the data was merely restricted.  The Commission would have the power to adopt ‘delegated acts’ to spell out the right in more detail.

In the EP’s view, the right could also be exercised directly against third parties, and there would be a further possibility to exercise the right following an order by a court or regulatory authority (presumably including a data protection authority).

In the Council’s latest text, these grounds for exercising the right (as amended by the EP) are retained. The obligation to inform third parties is also retained, but the Italian Presidency’s explanation of its proposal makes clear that this text is taking on board – rather than rejecting – the Court of Justice’s ruling that Google must itself be considered a ‘controller’ of the personal data, and therefore directly subject to data protection rules.

As for the exceptions to the right, the ‘freedom of expression’ exception remains, fleshed out with the wording of Article 10 ECHR, taking ‘due account of the public interest…in relation to the personal quality of the data subject’. The Presidency’s explanations make clear that this awkward wording is meant to encompass the ‘public figure’ exception hinted at (but not elaborated upon) in the Google Spain judgment.  There would also be new exceptions, as regards ‘archiving purposes in the public interest’, social protection, making or defending legal claims, performing a public interest task or exercising official authority. The Commission power to adopt delegated acts has been dropped.

There’s no longer an exception (as regards the right to be forgotten) for the commercial interests of data controllers such as Google. But that won’t really change the status quo, since the CJEU easily found in Google Spain that Google’s economic interests were overruled by the data subject’s right to privacy.

New clauses in the preamble would reflect the CJEU’s ruling on the ‘public figure’ exception, the possibility of complaint either to the controller or to a data protection authority or the courts, and the role of the controller in applying the balancing test. The preamble would also note that the right to be forgotten has to be balanced against other rights; the wording here is taken from Article 52(1) of the Charter, which sets out a general rule on limitations of Charter rights.

What are we to make of these proposals? First of all, it’s clear that the essential features of the Google Spain judgment seem likely to be codified, not overturned, by the new law. This is assumed in the Presidency’s explanatory notes. Indeed, the Google Spain judgment turned on the Court’s reasoning that it was ‘no longer necessary’ to make available (accurate) data on the data subject’s previous financial troubles, via means of Google. And that very ground for exercising the right to be forgotten would be expressly retained in the new legislation.

The other grounds for exercising that right, as set out in the proposal, were not addressed in the judgment, although the Court would likely have ruled that they existed if it had been asked. Here, it’s important to point out the express power to withdraw consent for data processing. This would clearly cover cases of ‘revenge porn’,  where one sexual partner initially agreed to the images being posted on the Internet but withdrew his or her consent when the relationship broke down. (For cases where there was never any consent to posting such images on the Internet, data protection law would have been violated from the outset).

Moving on to the exceptions from the right, the most controversial aspect is the reconciliation of the right to be forgotten with the freedom of expression. As noted above, the proposal codifies but does not clarify the ‘public figure’ exception. There’s a cross-reference to Article 80 as regards the freedom of expression. This Article (in the Commission’s original proposal) reproduces the current ‘journalist exception’ for the ‘processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression’. While some Member States object that this exception does not apply to bloggers (see the footnotes to the latest text), the CJEU took a broad approach to this exception in the case of Satamedia, regarding a company which sends out text messages about people’s tax information as a journalist. On the other hand, the Court did not regard Google itself as a journalist.

The better view is surely that bloggers and anyone otherwise expressing themselves on social media fall within the scope of the ‘freedom of expression’ exception, even if they are not professional journalists. After all, such persons are still exercising their freedom of expression, and it would be deeply unprincipled, in the modern world, to protect that freedom for one group of people but not others. Moreover, such a distinction would clearly violate Article 10 ECHR, in light of the relevant case law of the European Court of Human Rights.

The CJEU did not consider in Google Spain whether freedom of expression could be relied upon to argue that journalists (and others) need unrestricted Internet access to do their jobs properly. So arguably this is still an open issue that could be raised by a journalist in an appropriate case.

More fundamentally, the latest draft entrenches the CJEU’s position that Google is mainly responsible for processing complaints about privacy, without ensuring that it is accountable. In other areas of law, there are reporting requirements imposed upon companies to ensure that they meet their legal, social and ethical obligations. Since Google will in practice usually be in charge of striking the balance between privacy and freedom of expression, the new legislation should require that it report on how it has balanced these rights, so that there can be a public discussion of the appropriateness of its actions.

Finally, how might the new Regulation (in the current draft) apply to Wikipedia and social networks? As discussed in a previous blog post, obviously Wikipedia could try to rely upon the ‘public figure’ exception. It could also try to rely upon the exceptions for archiving or historical interest, although that depends upon the final wording of other provisions of the Regulation.

Equally, the precise application of the new rules to entities like Facebook depends on the final wording of the ‘household exception’ in the new legislation, as well as the open question of how (if at all) the Google Spain judgment applies to user-generated content, as well as user-controlled privacy settings.

Overall, the latest drafts of the new Regulation on the ‘right to be forgotten’ will disappoint not only the fiercest critics of the Google Spain ruling, who regard any limitation of search engine results on privacy grounds as anathema, but also the more moderate critics (like myself) who believe that the ruling failed to strike clearly the right balance between the right to privacy and the right to freedom of expression. It’s not yet too late to urge the Council (and then, the Council and the EP) to address issues such as the unjustified special treatment of journalists, the accountability of search engines and the application of the new rules to other types of Internet use.

Barnard & Peers: chapter 9

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‘We can laugh at everything, but not with everyone!’ Parody and limits to freedom of expression: the CJEU decision in the Deckmyn case

By Sabine Jacques

PhD student focussing on the parody exception 

at the School of Law, University of Nottingham (UK)

Since the Advocate-General’s opinion(still not available in English; but this opinion has been commented upon here), parody has attracted a lot of attention. Today, the Court of Justice of the European Union (CJEU) issued its judgmentwhich is likely to attract twice as much attention. As a reminder, the eventful introduction of a parody exception in UK copyright law is scheduled to enter into force on 1^stOctober 2014.

The facts

This dispute concerns copyright and more specifically the interpretation of Article 5(3)(k) of the Infosoc Directive which allows Member States to introduce an exception to the reproduction right (Article 2 of the Directive) and the right of communication to the public (Article 3 of the Directive) for the purpose of caricature, parody or pastiche. The facts relate to a calendar parodying a well-known Spike and Suzy (Suske and Wiske) album cover to promote a political message of the Vlaams Belang’s party (Flemish nationalist political party). The two works are illustrated above.

Against this background, the Belgian court of first instance granted an interim injunction preventing further distribution of the calendar. Subsequently, the defendants appealed this decision and the Brussels Court of Appeal decided to refer to the CJEU.

The Court’s judgment

First of all, the CJEU ruled, in conformity with the analysis of the Advocate-General in his opinion, that that ‘parody’ is an autonomous concept of EU law, which should be given uniform interpretation throughout the Union. The optional character of the exception does not rule out the principle of uniform application of EU law (see Padawan, C-467/08, paras 32-33).

Moving to the interpretation of the parody exception, the CJEU begins by reminding us that where no definition is provided, the usual meaning of terms is to be preferred. Expanding on the meaning of the term ‘parody’, the Court holds that ‘the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.

Furthermore, the national court had asked if there were further requirements applicable before the parody exception could be invoked. The CJEU answered that parody does not have to be original (besides carrying apparent differences with the original work it is borrowing from), the new work does not have to be attributable to somebody else than the author of the original work nor does it have to relate to or mention its source.

Finally, the CJEU repeats the application of strict interpretationof exceptions to the rights of reproduction and communication, as these are derogations from exclusive rights. However, strict interpretation must enable the effectiveness of the exception (see recital 31 of the Directive, Football Association Premier League and Others, C‑403/08 and C‑429/08, para 163). The CJEU indicates that a fair balance needs to be achieved between the interests of authors and the users’ rights (see Padawan, C-467/08, para 43 and Painer, C-145/10, para 132). This means that courts must balance the exclusive rights of rightholders with the users’ freedom of expression.

To that end, the court takes the example of the facts before it. The drawing at issue presenting original characters distorted as to convey a discriminatory message is likely to have the effect of associating the message with the protected work. If the national court finds that such association is plausible, the court needs to balance freedom of expression with the principle of non-discrimination based on race, colour and ethnic origin (Article 21(1) of the Charter of Fundamental Rights) as rightholders have a legitimate interest in not having their work associated with such a message.

The ball is now in the Belgian court to first determine whether the alleged infringing work falls within the meaning of the Directive and whether the fair balance between rightholders and users is preserved.

Comments

It is not surprising that the Court ruled that parody is an autonomous concept. This is consistent with the CJEU’s case law on the other provisions of the Directive (most notably in Padawan, C-467/08). However it is interesting to see how the Court grasps the concept of parody. By referring to the ordinary meaning of the word, the Court acts as if parody has a similar meaning throughout the Member States. This is absurd as there are so many controversies as to the ordinary meaning of the term already within a single jurisdiction. As a reminder, parody is a multivalent term covering among others satire, pastiche, caricature, spoof, irony and burlesque.

This being said, the Court also established the only two requirements attached to the definition of ‘parody’ under the Directive. Firstly, the new work has to invoke the earlier work while being noticeably different. Essentially, this is the very nature of parody. Through the parody, the parodist aims to bring into the public’s mind the work it is based on without confusing the public as to its creative origin. By the distance operated, the parodist intends to avoid artistic confusion (whereby the public might believe that the new work is a continuation of the protected work) and economic confusion (signifying the public believes that the new work was authorised by the rightholder). In any case, parasitism is excluded.

According to the second requirement, parodies must have a humoristic character. Being a subjective term, this condition could be problematic in practice and calls for further case law. How should ‘humour’ be interpreted? Some jurisdictions have interpreted this concept strictly, but some have quite broadly expanded it to encompass homage and criticism.  Additionally, will this condition be interpreted based on the parodist’s intent or the reaction of the public exposed to the new work? Lastly, the target of the humoristic expression is not specified. Does it have to be the earlier work? The original author? A third subject? Following this, the humoristic element appears difficult to define.

Consequently, it is apparent that other conditions must be set aside. This means that the parodist does not have to acknowledge the borrowings, and the amount reproduced from the original, the motivation of the parodist (such as commercial exploitation), the encroachment of the rightholder’s economic rights, the possible alternatives to the dealing (such as the likelihood to acquire a license) and the originality (understood as the level required to attract copyright protection) are not conditions to the application of the parody exception as enshrined in the Directive.

If the above paragraph is not likely to arouse passion, the developments of the CJEU regarding the balance between the interests of rightholders and the users’ freedom of expression certainly will. The CJEU established that rightholders had a legitimate interest not to have their protected work associated with offensive messages conveyed by the parody. It is dubious how this will be interpreted in practice and whether this will annihilate the effectiveness of the exception. Parody has worn many coats since its origin in Ancient Greece from being playful to dark and acerbic. Today, some of these are likely to be jeopardised.

*The translation of the title quotation is mine. Quotation of Pierre Desproges (French comedian known for his acerbic and dark humour): “On peut rire de tout, mais pas avec tout le monde”.

Barnard & Peers: chapter 9, chapter 14

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Is it a parody? The Advocate-General’s opinion in the Deckmyn case

By Sabine Jacques

PhD student focussing on the parody exception 

at the School of Law, University of Nottingham (UK)

As was expected, the Advocate-General’s opinion (not yet available in English) in the Deckmyn case was released this morning. This dispute involves interesting questions such as the interpretation of the parody copyright exception, the requirements attached thereto and its relationship with other fundamental rights. 

The provision concerned is Article 5(3)(k) of the Infosoc Directive which allows Member States to introduce an exception to the reproduction right (Article 2 of the Directive) and the right of communication to the public (Article 3 of the Directive) for the purpose of caricature, parody or pastiche.

As the English introduction of a parody exception is being currently delayed,along with the continuation of criticism surrounding the Infosoc directive, the AG’s opinion is very much welcome. Additionally, as Member States have the habit of tailoring copyright exceptions to their legal traditions, the AG’s opinion (despite its lack of binding effect) is a meaningful clarification of the meaning and scope of the parody exception at EU level and provides insight as to its interplay with other fundamental rights. 

The facts 

The facts are pretty straightforward and concern the distribution of a calendar of which the front page reproduces a well-knownSpike and Suzy (Suske and Wiske) album cover distorted in a way to promote a political message of the Vlaams Belang’s party (Flemish nationalist political party). Unequivocally, the alleged infringing work represents the City of Ghent’s Mayor, Mr Termont, wearing a white tunic with a belt displaying the Belgian colours, distributing money to people from different backgrounds. This calendar was distributed during the party’s New Year’s Eve reception and later, in brochures as well as on the party’s website. Consequently, the heirs and rightholders of Mr Willebrord Vandersteen(the author of the comic albums) claim infringement of their copyright in the comic albums against Mr Johan Deckmyn (member of the Vlaams Belang’s party) and the Vrijheidsfond, the association responsible for the party’s funding and promotion.

The two works: 

                       

The applicants argue that the alleged infringing drawing reproduces the general aspect of the original cover and other typical elements of the Spike and Suzy album covers such as the orange colour, font, characters, and title. The main differences between the two works lie in the substitution of the Spike and Suzy’s character for a depiction of Ghent’s Mayor joined to the characters chosen to pick up the coins conveying a discriminatory message and the addition of a handwritten statement “Fré freely in the style of Vandersteen”.

At national level, the court of first instance granted an interim injunction preventing further distribution of the calendar. Subsequently, the defendants appealed arguing that the work is allowed as it falls under the parody exception. The applicant also appealed to prohibit the political party to use the protected works in any manner.

After recognising the absence of uniformity in the legal tests applicable to the parody exception, the Brussels Court of Appeal decided to refer to the Court of Justice of the European Union (CJEU).

The questions referred to the CJEU

1.    Is the concept of 'parody' an independent concept (read “autonomous concept”) in European Union law?

2.    If so, must a parody satisfy the following conditions or conform to the following characteristics:

-    the display of an original character of its own (originality);

-    and such that the parody cannot reasonably be ascribed to the author of the original work;

-    be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;

-    mention the source of the parodied work?

3.    Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

The opinion

Preliminary remarks

Before turning to the analysis of the questions referred by the Belgian court, the AG notes what is not asked of the court and consequently, what is left out of the opinion.

Firstly, as moral rights are excluded from the scope of the directive (recital 19), their ensuing violation is left to the assessment of national judges.

Secondly, the interpretation of the three-step test enshrined in Article 5(5) of the directive requiring copyright exceptions to be applied “in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder” is also left out of the questions referred. Accordingly, the AG emphasises the role of the national judge to verify whether these conditions are met in the dispute.

Finally, the AG observes that the Belgian Court does not ask the CJEU to evaluate the Belgian limit to the exception whereby the exception is applicable if the work is created in accordance with honest practices (see Article 22(1)(6) of the Belgian Copyright Act1994).

The analysis of the questions referred

In relation to the first question referred, the AG states that “parody” is an autonomous concept of EU law, because the Directive refrains from defining or expressly referring to the Member States for the definition of that concept. This being said, the AG adds that when EU law does not provide sufficient guidelines, the nature of an autonomous concept does not preclude Member States from having a large margin of appreciation to determine the requirements attached to the exception.

Turning to the two other questions referred, the AG decides to address these together as they relate to the requirements for invoking the exception. Firstly, the AG notes that there is no significant distinction between the three concepts mentioned in the provision (parody, pastiche and caricature) and considers them together as they all share the common feature of being an exception to copyright. After consulting dictionaries to grasp the ordinary meaning of parody and its Greek etymology, the AG establishes common features to any parody. These comprise structural and functional features.

Structural features of parodies

A parody is simultaneously copy and creation. The nature of parody requires borrowing elements from earlier works. These elements borrowed can consist in essential elements of the original work as for the parody to be successful the earlier work must be recognisable to the public. But the parody is also creation as the parodist distorts the original work and it is in his interest that the public does not confuse the new work with the original work.

Against this backdrop, the AG attributes to Member States the duty to determine whether the new work incorporates enough new elements to not constitute a mere copy of the original with little modification. In light of the foregoing, the AG notes that Member States can adopt different requirements such as the absence of confusion, sufficient detachment or whether more elements are copied than necessary.

In a nutshell, the parody needs to be original in a sense that it must not be confused with the original work it borrows from.

Functional features of parodies

To break down the reasoning, the AG distinguishes between its subject, effect and content.

Firstly regarding the subjects (or targets) of parodies, the AG supports that parody works can either target the earlier work or its author, or a third subject external to the work it borrows from.

Secondly, the effect of the parody must be humorous. However, the AG leaves the assessment of the kind of comical effect required to Member States which bear an important margin of appreciation to determine whether the parody meets this threshold.

Thirdly in relation to the content of parody and the influence of fundamental rights, the AG examines the relationship between copyright (Article 17(2) of the Charter of fundamental rights) and the parodist’s freedom of expression (article 11(1), EU Charter of Fundamental Rights). The national judges must bear in mind the importance of preserving the freedom of expression, an essential feature of any democratic societies. This being said, this right is not absolute. Besides the limits on the right set out in Article 10(2) of the European Convention on Human Rights, the Charter protects other values which may conflict with the freedom of expression such as human dignity (Article 1 of the Charter) and non-discrimination based on cultural, religious and linguistic diversity (Article 22 of the Charter). Based on this, the AG notes that the parody exception should not be refused just because the author of the original work does not approve the comment made through the parody. Nevertheless, the AG suggests an important limit upon the application of the exception by stating that the exception is inapplicable where the parody conveys “a message radically contrary to the deepest values of a particular society” (this quote is translated from the French version by the author of this post). In conclusion, national judges must weigh the different fundamental rights in relation to the circumstances of the particular case.

Comments

As this is the first parody case referred to the CJEU, this dispute is likely to attract a lot of attention and possibly, criticisms. By making “parody” an autonomous concept of EU law, the AG follows the CJEU’s consistent approach endorsing the need for a uniform application of EU law. For example with the Padawan decision in relation to the autonomous concept of “fair compensation”, the Court stated : “according to settled case-law, the need for a uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective of the relevant legislation” (See Padawan at para 32).

Interestingly, when it comes to defining what parody consists of, the AG chooses not to distinguish the three terms parody, caricature and pastiche. This appears to be in line with the nature of parody which is seen as a multivalent term covering among others satire, pastiche, caricature, spoof, irony and burlesque.

By the structural feature, the AG acknowledges the particular nature of parody which requires both copying and creation. The AG infers that national judges have to weigh whether the parody comprehends enough creation to exclude representing a slavish imitation of the original. Ultimately, this is where the difficulty lies as parodist needs to copy enough elements to trigger the memory of the original work in the public and simultaneously, supply enough new elements to avoid confusion. Against this backdrop, the AG requires the parody to be original rather than a mere copy with little alteration of the original. One is allowed to wonder what kind of originality is required. Are we talking of the ordinary meaning of originality or the copyright law meaning (i.e. “original” enough to trigger copyright protection)? On this question, the AG seems to leave the assessment to the national judges.

Moving on to the functional features of parody, the AG appears to allow the application of the exception to both target (commenting either on the work it borrows from or its author) and weapon parodies (using the parody to comment on a third subject). This approach departs from the US distinction made in the landmark Campbell decision where the US Supreme Court held fair use applicable only to target parodies. This being said, this brings the EU closer to other jurisdictions such as Australia and Canada where legislators rejected the distinction between target and weapon parodies in the wording of the provision. 

The effect of parody needs to be humorous. The assessment of the required comical effect is left to the national judges and depends on the particular circumstances of the case. However, the AG appears to be in favour of a liberal interpretation as the parody exception relies heavily on freedom of expression considerations. This being said, one wonders whether the effect equals the result of the parody itself. Indeed problems could arise if it is the effect of the parody on the public which is required. This is explained by the fact that this effect relies on several accounts such the talent of the parodist but also relies on the public exposed to the parody.

Finally and surprisingly, the AG appears to let the Member States (and especially the national courts) assess the content of parodies. By weighing the different fundamental rights at stake, the courts can limit the application of the parody exception where the message is radically contrary to the fundamental values of a particular society such as xenophobia, racism and homophobia but could be extended to other cultural diversities as long as these are considered by national courts jeopardised by the parody. This last point promises to attract many criticisms as it is an open door to a kind of censorship.

In conclusion, much leeway is left to national judges and it is not given that this interpretation amounts to harmonisation among the Member States. Finally, whether the approach of the AG will be followed by the CJEU remains to be seen.

Barnard & Peers: chapter 9

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