Use of Filters by Online Intermediaries and the Rights of Users: Developments in the European Union, Mexico, India and China

Abstract

Digitisation of content has facilitated dissemination of information. Most content today is accessed through internet intermediaries who facilitate the uploading, discovery, sharing, delivery and receipt of information. The web, or the participative web as it is commonly known, is considered a place for exchanging content as well as a mechanism enabling creators to reach greater audiences for their works. Despite the advantages of disseminating content online, internet intermediaries have been the hearth of copyright infringements. Public consultation on the modernization of the enforcement of intellectual property rights in 2016 in the European Union drew attention to concerns with the emergence of new internet service providers while the report of the European Union Intellectual Property Office examining consumption of copyright-infringing content, of TV programmes, music and film in the 28 EU Member States drew highlighted numerous issues. Policymakers responded and introduced new legislative frameworks and forced internet intermediaries to deploy technological tools to terminate or curb the circulation of unauthorized content. The response was reflected in various jurisdictions including the European Union, Mexico and India. Developments in relation to Copyright in the Digital Single Market Directive are described. The adoption of filters by online intermediaries to block or filter the content of websites and networks to prevent or stop infringements by users is described and the subsequent concerns identified. Restrictive measures taken have been subject to criticism due to the high margin of error. Filter technology mechanisms are not always able to identify lawful content related to copyright exceptions, sometimes removing content unnecessarily which leads to censorship of content available to users. Technological measures might pose obstacles to the right of freedom of expression, the right to receive information and the violation of the fundamental rights of users. An array of measures dealing with the issues is presented.