Clash Of EU's Poorly Thought Out Laws: German Data Protection Commissioner Warns That Article 13 Might Violate GDPR

from the fight-fight-fight dept

As we've been noting recently, the EU really seems to be bending over backwards to pass poorly thought out laws about the internet (sometimes, though not always, with the best of intentions). For example, the GDPR certainly seems to have good intentions behind it, but in practice it has been a disaster in many specific cases, where it seems obvious that those who crafted the law simply ignored warnings about how it would intersect with real world situations -- especially those regarding free speech. Then, of course, there's the EU Copyright Directive and Article 13, where as far as I can tell, the EU is rushing forward with this effort, knowing that it's awful, because the entire point of the law is to be so awful that internet companies are pressured into grovelling before Hollywood not to sue them for violating a law with which it is literally impossible to be in compliance with.

Of course, in a bit of irony, at least one German official is recognizing that the intersection of these two laws may, in fact, cause some significant concerns. Despite what supporters have said about Article 13, it will require that most online platforms use upload filters. While supporters insist the law does not say that, when pressed on this issue, they only note that filters are one way to try to comply, and basically say that tech companies might need to "nerd harder" to come up with alternatives. However, in all practicality, this law is a giant government handout to filter companies. Indeed, as we noted, some of the strongest lobbying in favor of Article 13 came from Audible Magic, which is the recognized leading independent upload filtering company (many, many other companies use its technology, with the one major exception being Google, which built its own filtering tech).

TorrentFreak points us to a letter to the EU Parliament from Germany's Data Protection Commissioner (basically, the person in charge of enforcing the GDPR), warning that since there are so few filter companies, and Article 13 will more or less mandate their usage, it will raise significant concerns about all the data those companies (really: Audible Magic) will collect on people and their internet habits. The letter was first translated into English by Florian Mueller, who received an official "approval" from the German Federal Commissioner that his translation was accurate.

The letter starts off by brushing away the silly claim that Article 13 won't require filters:

The Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber, therefore warns against the potential consequences of the reform in question: "Even though upload filters are not explicitly mandated by the bill, they will be employed as a practical effect. Especially smaller platform operators and service providers will not be in a position to conclude license agreements with all [copy]right holders. Nor will they be able to make the software develoment effort to create upload filters of their own. Instead, they will utilize offerings by large IT companies just the way it is already happening, for one example, in the field of analytics tools, where the relevant components created by Facebook, Amazon and Google are used by many apps, websites, and services."

From there, Kelber notes that with so few filter vendors on the market, significant data protection concerns are raised about the government mandating these companies basically sift through the entire internet:

"At the end of the day, this would result in an oligopoly consisting of a few vendors of filtering technologies, which would then be instrumental to more or less the entire Internet data traffic of relevant platforms and services. The wealth of information those vendors would receive about all users in the process is evidenced by, among other examples, current media coverage of data transfers by eHealth apps to Facebook."

Therefore, the Federal Commissioner for Data Protection and Freedom of Information sees a clear and present danger of a further concentration of data in the hands of an oligopoly of vendors as an adverse effect of the present EU proposal. Against the background of the decision the Federal Cartel Office [Germany's national antitrust authority] handed down against Facebook a few weeks ago, the objective should actually be to achieve the opposite [of such concentration of data].

Ulrich Kelber calls for further steps to be taken to avert the previously-outlined scenario: "If the EU believes platform operators can meet their new obligations [under the proposed copyright directive] without upload filters, it must make a clear showing. That is why I am awaiting with great interest the [European] Commission's forthcoming recommendations. In the other event, data privacy considerations require a thorough overhaul of the bill. Notwithstanding the need to update the protection of author's rights in our times, such a measure must not harm or compromise the protection of Internet users' data."

In other words, it looks like Article 13 in the EU Copyright Directive might run headlong into the GDPR's restriction on the collection and use of data. This kinda feels like something that should have been thought out way earlier, but seems consistent with the slapdash manner in which the EU is regulating the internet these days: with little to no understanding of how the internet actually works, demands to do the impossible, and threats of massive fines for any company that then fails to do the impossible. This is no way to actually regulate, but apparently it's par for the course in the EU right now.

Filed Under: article 13, copyright, data protection, eu, eu copyright directive, gdpr, germany, monopoly, upload filters
Companies: audible magic

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    Anonymous Coward, 6 Mar 2019 @ 4:05pm

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    Colliseum comment.. Best Comment on this article!

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