PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND

Mandate of the Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression
REFERENCE:
OL OTH 41/2018

13 June 2018
Excellency,
I have the honor to address you in my capacity as Special Rapporteur on the
promotion and the protection of the right to freedom of opinion and expression pursuant
to Human Rights Council resolution 25/2.
In this connection, I would like to bring to the attention of the European
Commission information I have received concerning the European Union draft
directive on copyright in the digital single market (“the proposed Directive”) and its
potential implications for the right to freedom of expression in European Union (“EU”)
member States.
According to information received:
On 14 September 2016, the European Commission proposed a draft directive on
copyright in the digital single market (“proposed Directive”). The Directive is part of a
package of proposed laws to modernize EU copyright rules in light of the development of
new digital technologies.
Article 13(1) of the proposed EU Copyright Directive establishes obligations on
“[i]nformation society service providers that store and provide to the public access to
large amounts of works or other subject-matter uploaded by their users” to monitor and
restrict the use of third party content that is protected by copyright law. The Council of
the European Union (“the Council”) and the European Parliament are considering similar
notions of “online content sharing service providers” in their respective negotiations.
Since November 2016, the proposed Directive has been the subject of ongoing
discussion and negotiations among EU Member States in the Council.
On 17 May 2018, the Presidency of the Council, currently held by Bulgaria,
issued a modified “compromise text” of the proposed Directive based on bilateral
consultations and other negotiations with EU member States.
On 25 May 2018, the Council adopted the “compromise text” as its final
negotiating position. Germany, Finland, the Netherlands, Slovenia, Belgium and Hungary
voted against this text.
The Legal Affairs Committee of the European Parliament (“JURI”) is scheduled
to vote on its position on the proposed Directive on 20 or 21 June 2018.
The relevant Articles of the “compromise text” establish the following:

 Definition of “Online Content Sharing Service Provider”
Under Article 2(5) of the Directive, an “online content sharing service provider”
is defined as a provider of “an information society service whose main or one of the main
purposes is to store and give the public access to a large amount of works or other
subject-matter uploaded by its users.”
The following entities are excluded from this definition: Non-profit “online
encyclopaedias,” “educational and scientific repositories,” “open source software
developing platforms,” and “internet access service providers, online marketplaces and
providers of private cloud services which allow users to upload content for their own
use.”
Obligation to Obtain Authorization to Make Available Copyright Protected Works
Article 13(1) states that content sharing providers must obtain “an authorisation
from the rightholders... in order to communicate or make available to the public works or
other subject matter.” Such authorization is typically obtained through licensing
agreements with rightholders.
When such authorization has not been obtained, content sharing providers shall
“prevent the availability on its service of those works and other subject matter” through
“the application of measures” stipulated (but not defined) in Article 13(4).
Obligations to Prevent the Availability of Copyright Protected Works
Under Article 13(4)(a), content sharing providers will not be liable for
communicating or making available to the public copyright protected works only if they
have demonstrated “best efforts to prevent the availability” of such works through
“effective and proportionate measures.” Such measures are required when rightholders
have “provided the service with relevant and necessary information for the application of
these measures.”
In the alternative, under Article 13(4)(b), service providers are not liable when
they have: (i) “acted expeditiously to remove or disable access” to copyright protected
works upon notification by rightholders; and (ii) demonstrated “best efforts to prevent
their future availability” through “effective and proportionate measures.”
Under Article 13(5), an assessment of whether the measures taken are “effective
and proportionate” depends on, among other factors, “the nature and size of the services”
(including whether they are provided by a “microenterprise or a “small-sized enterprise”),
the amount and type of works at issue, and the availability and costs of such measures.
Obligation to Establish Complaint and Redress Mechanisms

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 To preserve the ability of users to “benefit from exceptions or limitations to
copyright”, Article 13(7) requires service providers to “put in place a complaint and
redress mechanism” to deal with “disputes over the applications of the measures to their
content.”
Content service providers will be responsible for addressing user complaints and
associated disputes through these mechanisms “in cooperation with relevant rightholders
within a reasonable period of time.”
When this mechanism is triggered, rightholders are required to “justify the
reasons for their requests to remove or block access to their specific works or other
subject matter.”
Member States shall also “endeavour to put in place independent bodies to assess
complaints related to the application of these measures.”
Before explaining my concerns with the proposed Directive, I wish to remind the
Commission of the obligations binding all member States of the European Union under
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and article
15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 19(1) of the ICCPR establishes “the right to hold opinions without
interference.” The right to hold opinions is so fundamental that it is “a right to which the
Covenant permits no exception or restriction.”1 Accordingly, this right is not simply “an
abstract concept limited to what may be in one’s mind,” and may include activities such
as research, online search queries, and drafting of papers and publications.”2
Article 19(2) of the ICCPR establishes State Parties’ obligations to respect and
ensure the right “to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.”
Under Article 19(3) of the ICCPR, restrictions on the right to freedom of
expression must be “provided by law,” and necessary “for respect of the rights or
reputations of others” or “for the protection of national security or of public order (ordre
public), or of public health and morals”. The General Assembly, the Human Rights
Council and the Human Rights Committee (the body charged with monitoring

1

U.N. Human Rights Comm., General Comment No. 34, article 19: Freedoms of opinion and
expression, U.N. Doc. CCPR/C/GC/34, ¶ 9 (September 12, 2011) (“General Comment 34”),
available at http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf
2
General Assembly, Report of the Spec. Rapporteur on the Promotion and Protection of the Right
to Freedom of Opinion and Expression, David Kaye, A/HRC/29/32, ¶ 20 (“A/HRC/29/32”),
available at https://freedex.org/wpcontent/blogs.dir/2015/files/2015/10/Dkaye_encryption_annual_report.pdf

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 implementation of the Covenant) have concluded that permissible restrictions on the
Internet are the same as those offline.3
Since Article 19(2) of the ICCPR “promotes so clearly a right to information of
all kinds,” this indicates that “States bear the burden of justifying any withholding of
information as an exception to that right.”4 The Human Rights Committee has also
emphasized that limitations should be applied strictly so that they do “not put in jeopardy
the right itself.”5
Article 19(3) of the ICCPR establishes a three-part test for permissible restrictions
on free speech. First, restrictions must be provided by law. According to the Human
Rights Committee, any restriction “must be made accessible to the public” and
“formulated with sufficient precision to enable an individual to regulate his or her
conduct accordingly.”6 Moreover, it “must not confer unfettered discretion for the
restriction of freedom of expression on those charged with its execution.”7
Second, restrictions must only be imposed to protect legitimate aims, which are
limited those specified under Article 19(3) of the ICCPR. The term “rights…of others”
under Article 19(3)(a) includes “human rights as recognized in the Covenant and more
generally in international human rights law.”8
Third, restrictions must be necessary to protect legitimate aims. The requirement
of necessity implies an assessment of the proportionality of restrictions, with the aim of
ensuring that restrictions “target a specific objective and do not unduly intrude upon the
rights of targeted persons.”9 The ensuing interference with third parties’ rights must also
be limited and justified in the interest supported by the intrusion. Finally, the restriction
must be “the least intrusive instrument among those which might achieve the desired
result.”10

3

See General Assembly resolution 68/167; Human Rights Council resolution 26/13; General
Comment 34, supra n. 1, at ¶ 12.
4
General Assembly, Report of the Spec. Rapporteur on the Promotion and Protection of the Right
to Freedom of Opinion and Expression, David Kaye, A/70/361, ¶ 8 (“A/70/361”), available at
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/70/361.
5
General Comment 34, supra n. 1, at ¶ 21
6
Id. at ¶ 25.
7
Id.
8
Id. at ¶ 28.
9
Human Rights Council, Report of the Spec. Rapporteur on the Promotion and Protection of the
Right to Freedom of Opinion and Expression, David Kaye, A/HRC/29/32, ¶ 35; see also U.N.
Human Rights Comm., General Comment No. 27, Freedom of movement (Art. 12), U.N. Doc.
CCPR/C/21/Rev.1/Add.9 (Nov 2, 1999) (“General Comment 27”), available at
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR
%2fC%2f21%2fRev.1%2fAdd.9&Lang=en.
10
General Comment 27, at ¶ 14.

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 The previous Special Rapporteur on freedom of expression concluded that, “as a
general rule, there should be as little restriction as possible to the flow of information on
the Internet, except under a few, very exceptional and limited circumstances prescribed
by international law for the protection of other human rights.”11 In our 2017 Joint
Declaration on Freedom of Expression and “Fake News”, Disinformation and
Propaganda, I joined the independent monitors of freedom of expression and the media in
the UN, the Americas, Europe and Africa in emphasizing that content blocking or
takedown decisions must meet “minimum due process guarantees.”12
Article 15 of the ICESCR simultaneously calls for the protection of the right of
everyone to take part in cultural life (1 a), enjoy the benefits of scientific progress and its
applications (1 b) and benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which s/he is the author (1
c). This article recalls that cultural participation and the protection of authorship are both
human rights principles designed to work in tandem. The Committee on Economic,
Social and Cultural Rights, in its General Comment No. 21 on the right to take part in
cultural life, and the previous UN Special Rapporteur in the field of cultural rights, in her
thematic work on the right to benefit from scientific progress and its application
(A/HRC/20/26), emphasized that both of these rights included access by everyone
without discrimination to the cultural expressions of others, including scientific
knowledge, opportunities for all to contribute to science and culture and the freedom
indispensable for scientific research and artistic creation, and an enabling environment
fostering the conservation, development and diffusion of culture, the arts, science and
technology.
The UN Special Rapporteur in the field of cultural rights emphasized human
knowledge as a global public good and recommended that States should guard against
promoting the privatization of knowledge to an extent that deprives individuals of
opportunities to take part in cultural life and enjoy the fruits of scientific progress
(A/HRC/20/26, para. 65). The Special Rapporteur in the field of cultural rights
emphasized the need for the right to science and culture to be respected in the copyright
framework. She recommended that States develop and promote mechanisms for
protecting the moral and material interests of creators without unnecessarily limiting
public access to creative works, through exceptions and limitations and the subsidy of
openly licensed works (A/HRC/28/57, para.102), and to consider that exceptions and
limitations that promote creative freedom and cultural participation are consistent with
the right to protection of authorship (ibid. para. 105).

11

General Assembly, Report of the Spec. Rapporteur on the Promotion and Protection of the
Right to Freedom of Opinion and Expression, Frank La Rue, A/66/290, ¶ 12 (“A/66/290”),
available at http://www.ohchr.org/Documents/Issues/Opinion/A.66.290.pdf
12
The other experts are the Organization for Security and Co-operation in Europe Representative
on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom
of Expression, and the African Commission on Human and Peoples’ Rights Special Rapporteur
on Freedom of Expression and Access to Information.

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 Under the Manila Principles on Intermediary Liability, a valuable best practices
framework developed and adopted by over 50 civil society and academic participants
worldwide, “intermediaries must not be required to restrict content unless an order has
been issued by an independent and impartial judicial authority that has determined that
the material at issue is unlawful.”13 In exceptional circumstances where expedited review
is required, the Manila Principles indicate that notice-and-notice regimes and expedited
judicial process are available as the least invasive means for achieving legitimate
government aims under Article 19(3). Notice-and-notice regimes would require
intermediaries “to respond to content restriction requests pertaining to unlawful content
by either forwarding lawful and compliant requests to the [content sharing] provider, or
by notifying the complainant of the reason it is not possible to do so” (Manila Principle
III.d). Furthermore, the Principles indicate that “[t]he burden of a full judicial hearing can
be reduced by instituting an expedited judicial process, subject to due legal safeguards”
(Manila Principle II.a).
Given these criteria for imposing intermediary liability for user-generated content,
I have concluded that “States and intergovernmental organizations should refrain from
establishing laws or arrangements that would require the “proactive” monitoring or
filtering of content, which is both inconsistent with the right to privacy and likely to
amount to pre-publication censorship.”14 I have explained that “[a]utomated tools
scanning music and video for copyright infringement at the point of upload have raised
concerns of overblocking, and calls to expand upload filtering to terrorist-related and
other areas of content threaten to establish comprehensive and disproportionate regimes
of pre-publication censorship.”15 In particular, automated filtering may be ill-equipped to
perform assessments of context in the application of complex areas of law, such as
copyright and counterterrorism.16
The UN Special Rapporteur in the field of cultural rights has also cautioned
against proposals to address digital piracy through website blocking and content filtering
that “could result in restrictions that are not compatible with the right to freedom of
expression and the right to science and culture.”17
Article 2(3)(a) of the ICCPR establishes the obligation of States parties to provide
persons whose rights have been violated access to an “effective remedy,” regardless of
whether the “violation has been committed by persons acting in an official capacity.”
Article 2(3)(b) specifies that persons claiming such a remedy “shall have [their] right
thereto determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State.” According
13

Manila Principles on Intermediary Liability, Version 1.0, March 24, 2015. Available at
https://www.eff.org/files/2015/10/31/manila_principles_1.0.pdf
14
Human Rights Council, Report of the Spec. Rapporteur on the Promotion and Protection of the
Right to Freedom of Opinion and Expression, David Kaye, A/HRC/38/35, ¶ 67.
15
Id., at ¶ 32.
16
Id., at ¶ 33.
17
A/HRC/28/57 at ¶ 49.

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 to the Human Rights Committee, allegations of violations must be investigated
“promptly, thoroughly and effectively through independence and impartial bodies.”18 In
terms of remedies for undue interferences with online expression, I have found that the
“reinstatement of content would be an insufficient response if removal resulted in specific
harm – such as reputational, physical, moral or financial – to the person posting.”19
Based on these standards, I am very seriously concerned that the proposed
Directive would establish a regime of active monitoring and prior censorship of usergenerated content that is inconsistent with Article 19(3) of the ICCPR. In particular, I
have the following concerns:
Concerns Regarding Pre-Publication Censorship
Article 13 of the proposed Directive appears likely to incentivize content-sharing
providers to restrict at the point of upload user-generated content that is perfectly
legitimate and lawful. Although the latest proposed versions of Article 13 do not
explicitly refer to upload filters and other content recognition technologies, it couches the
obligation to prevent the availability of copyright protected works in vague terms, such as
demonstrating “best efforts” and taking “effective and proportionate measures.” Article
13(5) indicates that the assessment of effectiveness and proportionality will take into
account factors such as the volume and type of works and the cost and availability of
measures, but these still leave considerable leeway for interpretation.
The significant legal uncertainty such language creates does not only raise
concern that it is inconsistent with the Article 19(3) requirement that restrictions on
freedom of expression should be “provided by law.” Such uncertainty would also raise
pressure on content sharing providers to err on the side of caution and implement
intrusive content recognition technologies that monitor and filter user-generated content
at the point of upload. I am concerned that the restriction of user-generated content before
its publication subjects users to restrictions on freedom of expression without prior
judicial review of the legality, necessity and proportionality of such restrictions.
Exacerbating these concerns is the reality that content filtering technologies are not
equipped to perform context-sensitive interpretations of the valid scope of limitations and
exceptions to copyright, such as fair comment or reporting, teaching, criticism, satire and
parody.
Concerns Regarding Ineffective Remedial Mechanisms
18

U.N. Human Rights Comm., General Comment No. 31, The Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 1326
May 2004, ¶ 15 (March 29, 2004), available at
http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsjY
oiCfMKoIRv2FVaVzRkMjTnjRO%2Bfud3cPVrcM9YR0iW6Txaxgp3f9kUFpWoq%2FhW%2F
TpKi2tPhZsbEJw%2FGeZRASjdFuuJQRnbJEaUhby31WiQPl2mLFDe6ZSwMMvmQGVHA%
3D%3D.
19
A/HRC/38/35, ¶ 38.

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 The Art 13(7) proposal for content sharing providers to establish a “complaint and
redress mechanism” does not sufficiently address these concerns. The designation of such
mechanisms as the main avenue to address users’ complaints effectively delegates
content blocking decisions under copyright law to extrajudicial mechanisms, potentially
in violation of minimum due process guarantees under international human rights law.
The blocking of content – particularly in the context of fair use and other fact-sensitive
exceptions to copyright – may raise complex legal questions that require adjudication by
an independent and impartial judicial authority. Even in exceptional circumstances where
expedited action is required, notice-and-notice regimes and expedited judicial process are
available as less invasive means for protecting the aims of copyright law.
In the event that content blocking decisions are deemed invalid and reversed, the
complaint and redress mechanism established by private entities effectively assumes the
role of providing access to remedies for violations of human rights law. I am concerned
that such delegation would violate the State’s obligation to provide access to an “effective
remedy” for violations of rights specified under the Covenant. Given that most of the
content sharing providers covered under Article 13 are profit-motivated and act primarily
in the interests of their shareholders, they lack the qualities of independence and
impartiality required to adjudicate and administer remedies for human rights violations.
Since they also have no incentive to designate the blocking as being on the basis of the
proposed Directive or other relevant law, they may opt for the legally safer route of
claiming that the upload was a terms of service violation – this outcome may deprive
users of even the remedy envisioned under Article 13(7). Finally, I wish to emphasize
that unblocking, the most common remedy available for invalid content restrictions, may
often fail to address financial and other harms associated with the blocking of timesensitive content.
Concerns regarding the Disproportionate Burden on Nonprofits and Small Content
Sharing Providers
I am concerned that the proposed Directive will impose undue restrictions on
nonprofits and small private intermediaries. The definition of an “online content sharing
provider” under Article 2(5) is based on ambiguous and highly subjective criteria such as
the volume of copyright protected works it handles, and it does not provide a clear
exemption for nonprofits. Since nonprofits and small content sharing providers may not
have the financial resources to establish licensing agreements with media companies and
other right holders, they may be subject to onerous and legally ambiguous obligations to
monitor and restrict the availability of copyright protected works on their platforms.
Although Article 13(5)’s criteria for “effective and proportionate” measures take into
account the size of the provider concerned and the types of services it offers, it is unclear
how these factors will be assessed, further compounding the legal uncertainty that
nonprofits and small providers face. It would also prevent a diversity of nonprofit and
small content-sharing providers from potentially reaching a larger size, and result in
strengthening the monopoly of the currently established providers, which could be an
impediment to the right to science and culture as framed in Article 15 of the ICESCR.

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 I urge Your Excellency and your Member State Governments to ensure that any
measure the EU adopts to modernize its copyright laws addresses these concerns and is
consistent with Article 19 of the ICCPR and related human rights standards. Finally, I
would like to inform your Excellency’s Governments that this communication, as with
other comments on pending or recently adopted legislation, regulations or policies, will
be made available to each of the Member State Governments of the EU and the public,
and it will be posted on the website page for the mandate of the Special Rapporteur on the
right to freedom of expression:
http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/LegislationAndPolicy.aspx.
I would appreciate receiving a response within 60 days. Your Excellency’s
Government’s response will be made available in the above mentioned website as well as
in a report to be presented to the Human Rights Council for its consideration.
Please accept, Excellency, the assurances of my highest consideration.
David Kaye
Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression

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