Platform or Publisher? (EU) Decide – Article 13 and its repercussions

“It’s no use going back to yesterday, because I was a different person then”

Lewis Carroll, ‘Alice in Wonderland’

Today marked a significant shift in the digital culture with the passing of Article 13 within the European Union, legislation designed to limit and control the release and availability of copyrighted and created content on social media platforms. Fundamentally it changes the perception and approach from Government towards these technology companies once viewed as platforms, digital utility firms unaccountable for content on their platforms and effectively passing any accountability to the user. So just why is this such a significant moment and quite possibly a fundamental shift in how users access material? quite simply it’s a rebalance in the equation between the rights of content creators, the artists for example and the end users who access this material, quite often for free through sites such as Youtube and Facebook. Historically, media companies as represented by printed news outlets and screen media such as movies and television were effectively publishers, overseeing creative content and control of what was shown and released into the public arena. It allowed accountability to an extent for any toxic or hostile messages released, defamatory and libelous material to be challenged, legally if required in the courts and so creating a culture of oversight where by the ‘editor-in-chief’ was accountable for what was published.

In contrast, traditional communications outlets were viewed as and presented as utilities, effectively hardware that provided a conduit for a message but weren’t responsible or liable for what was transmitted. An example being phone lines, a bomb threat could be called in resulting in loss of life however there wouldn’t be just cause to hold the phone companies to account. Compare that to a newspaper publishing equally divisive or threatening material that was under the oversight of an editor and there would be room to question the liability and culpability of that individual. Now, historically to date the large technology companies such as Twitter, Facebook and Youtube have presented a united front in championing themselves as Platforms, unaccountable for the content on their servers and directing criticism and accountability to the users themselves. Objectively could Facebook or any open platform in their inception be viewed as a phone cable providing the architecture alone but having no accountability for the message released? quite possibly and there was merit to that argument but largely that has been erased as nearly all the large companies have adopted some form of editorial control over the content in recent years. Often this has been somewhat politicised and whilst that is another topic for discussion at a later date one of the most recent examples of this was during the Joe Rogan Podcast featuring Jack Dorsey and Tim Hill when discussing liberal bias on behalf of the social media platform. And this reframes the debate, if these platforms are now selectively editing content or choosing to restrict one form of content over another they are publishers as much as newspapers or other traditional media and liable for their content.

In 2018 when Mark Zuckerberg appeared before the US congress, a year before Article 13 was formalised by the European Union, the senators in both parties were looking at accountability and oversight, whether Facebook was accountable and responsible for the content on its platform. Up until this point, the unified message from all these companies was no, they were a platform, a digital utility. Whether it was mis said or an admission of truth by taking accountability in that moment of time for the content on its platform Facebook paved the way this issue to expand which has today been formally passed by the European Union so far as content uploaded here but could arguably be looked at in the United States for similar precedent. If Facebook, Twitter and Youtube are accountable for the material on their platform, due to editorial practise and oversight then they are responsible for the use of every single piece copy righted material that sits on their platform, whether a company can be held liable for the actions of billions of users is another matter but then does raise the prospect in the digital era of technology to police the platform through algorithms or employing additional users to take down posted media as soon as it appears. The article that passed today by the European Union is designed specifically around the restriction of copyrighted material and its use on social media platforms to rebalance the equation to allow artists to receive a fair share of revenue from its use. This doesn’t mean the material available cannot appear only that the end-user will have to pay some form of recompense for its use, be that the platform itself or the user. Will I still be able to buy music from Apple and listen to it through my phone? yes. Can I go onto Youtube and watch it for free? no. The material is still there, but in the digital world this legislation has the potential to fundamentally change how we access that said material.

By passing this legislation that all European Union countries must adopt into law within the next two years sets the precedent these companies and platforms can no longer operate under the auspices of being a platform unaccountable for content hosted, in which case they stop being a utility and become a publisher selectively controlling what is hosted upon it and what isn’t. But does this or could this extend further? perhaps. As a utility, if I received a threatening phone call this evening I wouldn’t have legal grounds to hold my provider responsible. If I received a threatening message targeted and directed at me by a news organisation, I could. And that form of defamation law and legislature is where this law could in theory progress to. If Twitter and Facebook are now publishers and responsible for content on their platform as now passed into law then in the courts could they be liable for any and all messages of harassment, threats, defamatory posts and statements against the individual? the scope of this legislation by now formally recognising that Social Media companies are not platforms, digital utilities but accountable for the content hosted upon them is staggering and has profound ramifications to come going forward. To paraphrase a well-known mythical television show, it doesn’t intend to shape the wheel it intends to shatter it. I have no doubt this was voted through with the best intentions to provide fair income and support to artists who have created this content but the scope of this article is staggering how it could be applied. If your life was ruined by mistaken identify for example on social media, arguably you now have grounds to hold companies such as Twitter and Facebook accountable where as before no such outcome was possible.

The answer at this stage is quite possibly an uptake in VPN, so-called Virtual Private Networks that mask your online foot print effectively and block tracking technology knowing who you are and where you are. Used by individuals who want to restrict access to their digital footprint and stop others seeing their activity they could in theory be used to bypass this legislation and law so long as other countries and regions continue to treat companies under the status quo. That is of course a big if, and also making the assumption there wont be some form of oversight or control these VPN software going forward. It’s very hard to imagine their use and ability to by-pass EU law wasn’t considered or looked at when this article came into being. Now there are exemptions to the legislation however the restrictions around these are quite strict and certainly a great many of the more know and used platforms will fall short of Article 13 and be required to purchase or develop upload media filters to ensure unlicensed digital content is removed. Given the breadth and range of content its easy to imagine only the largest platforms will be able to purchase and maintain license for content, perhaps Facebook and Twitter will be ok but smaller hosts such as WordPress itself with smaller resources will perhaps have to pull down linked copyrighted videos, photos, any material that could breach EU law. Google who have spent a considerable sum whilst taking some form of hit from the impact on Youtube will gain from the sale of content blockers used worldwide. A great deal of my content produced to date has involved imagery captured through gaming, I haven’t attempted to monetise it for the very reason its not my paid content but for example where I have purchased an art book does that give me passage to upload images onto my reviews? Equally Youtube videos of gameplay will presumably have to be retracted without the explicit consent of the studios themselves raising the prospect of effectively paid advertisement with the only media available that officially sanctioned by the developers and effectively neutered for conflicting content.

As with any new legislation there is scope for amendment and adaptation although given the length of time that has gone into debate and forumlation you would presume the window would be fairly narrow. The remit of this as part of the broader attempt to regulate the large media companies is to effectively change the nature of our consumption of this media and how we view and consume original content. The fear and contention has come I would argue from the unintended consequences, the so called ‘meme ban’ that in theory could be an issue with copyrighted images used freely on the internet now a prohibited item, whether this is enforced is another question. Gifs, clips of movies and television shows, presumably if sourced from an official channel would be acceptable however you would be unable to prove consent unless the nature of that is changed and uploaded content from studio is given presumed consent status and free to use. I actively pay for a number of media channels, Netflix and Amazon Prime and whilst I do feel I own any aspect of this content for my payment I do recognise the cost/benefit model at work here. Will it have unintended consequences? without a shadow of a doubt of course, be that the increased use of VPN’s, the Dark Web, the collapse of certain sites and new entries into the market. Even a resurgence of traditional media, I’ve enjoyed watching certain shows on streaming platforms and grow frustrated when a license expires. The same cannot be said for my DVD collection which remains accessible to me. There may be benefits, there will be consequences, how they manifest and to what extent is another question. Operating on the extremes of all opinions and possibilities you cannot this imagine studios and artists allowing discretion or any grey area in relation to profit, nor should they. But it could quite easily benefit the larger established companies and witness the descimation of everything from T-Shirt designers to bloggers and anything in between.

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