Guardians of the UGC Galaxy – Human Rights Obligations of Online Platforms, Copyright Holders, Member States and the European Commission Under the CDSM Directive and the Digital Services Act

Abstract

With the shift from the traditional safe harbour for hosting to statutory content filtering and licensing obligations in Article 17 of the CDSM Directive, EU copyright law imperils the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, may prove to be mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of polic-ing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design may thus conceal human rights violations instead of bringing them to light. The Digital Services Act rests on a similar – equally problematic – approach. Against this backdrop, the analysis addresses the risk of human rights interference, which is exacerbated by the fact that the Court of Justice, in its Poland decision, upheld the regulatory approach underlying Article 17, rather than exposing and discussing the corrosive effect of human rights outsourcing. Luckily, the new rules in the CDSM Directive and the Digital Services Act also contain several safeguards that allow EU Member States and the European Commission to actively take measures against the erosion of human rights.