Salut !
The European Parliament elections are a bit over seven months away and EU legislators are struggling to squeeze through a few more reforms, before their time expires. In practice deals need to be wrapped up by February the latest, otherwise parliament won’t have time to vote on them during their final plenary session in April. We’ll take you through the open files.
Dimi & Michele
=== EMFA ===
The European Media Freedom Act wants to improve freedom of the press in the EU through measures such as protections for journalists’ sources and ensuring public service announcements money is spent in a fair and transparent way.
—
The European Parliament officially adopted its position the 3rd of October by adopting in plenary the report of the Culture and Education Committee (CULT). This is good news for us, as the new recital 35a of the (AM 48) contains an explicit carveout for online encyclopaedias and educational and scientific repositories from the scope of Article 17 (see pages 40-41). Not-for-profit projects are not in the scope of the obligations in the Commission proposal and the Council position, but the parliament edited the text in a way that it had inadvertently included them, hence we asked for a clarification. If Wikipedia and its sister projects were to fall within the scope of this directive, content moderation of content provided by media outlets would have become legally more complicated.
—
Going to the three-way negotiations between Council, Parliament and Commission, we believe that this file will see the light of day, i.e. will be passed during this legislative term. Negotiations started straight after the vote in Strasbourg and the first meeting took place the 17thof October. Two are the main points we will focus our attention on: 1) the exclusion from the scope of Article 17 and 2) Article 4 that deals with the deployment of spyware against journalists and their sources.
===CSAM ===
The regulation laying down rules to prevent and combat child sexual abuse has the intention to set up a system that allows law enforcement, online services and civil society to detect and remove child sexual abuse material and online grooming. Wikimedia content is open, so anyone can already scan or go through our content, which is why this part of the proposal is of lesser concern to us. However, the pomme de discorde is a provision that would force online services to scan all interpersonal communication. A measure we believe is not-proportionate and have voiced this concern, although our projects don’t offer such functionality.
—
As of mid-October there was no deal in Council on a common position and to start negotiations with the Parliament. The staunchest opposing voices are from Germany, Austria and Poland, however France, the Netherlands, Portugal, Sweden, the Czech Republic and Belgium apparently also share some concerns. If the deadlock is not resolved soon, this file might be pushed to the next parliament’s agenda.
=== Anti-SLAPP Directive ===
The proposal, which was published in April 2022, aims at protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings that present a cross-border aspect. The acronym stands for strategic litigation against public participation.
—
Currently there are no common EU rules, the Directive, if passed, will offer some protection “by developing a common EU understanding on what constitutes a SLAPP and by introducing procedural safeguards”. More specifically, it will “provide courts with effective means to deal with SLAPPs and targets with the means to defend themselves.”
—
Both Council and Parliament adopted their respective positions and trilogue negotiations are currently taking place, alongside technical meetings. If Parliament's position was able to integrate the requests of journalists, activists, human right defenders and NGOs by widening the protection offered to them, Council’s general approach was quite conservative. In this sense, national governments deleted some fundamental Articles: Article 4 (Matters with cross-border implications), Article 10 (Stay of the main procedure), Article 11 (Accelerated procedure) and Article 15 (Compensation of damages).
—
We have engaged within CASE (Coalition against SLAPPs in Europe), especially after the SLAPP case in Portugal. One of our main goals is to have a wide definition of what constitutes a cross-border case, as in the Parliament’s position. The latter reconognised the ubiquitous nature of the Internet and asked for the recognition of the transnational nature of the acts of public participation taking place online, offering them full protection.
—
For the time being one trilogue took place the 9th of October. In addition, several technical meetings have taken, or are foreseen to take place before the last open-ended trilogue, which is scheduled for the 29th of November. It is nevertheless unlikely that this will be the last one.
=== Directive combating gender-based violence ===
The goal of this file is to reach an agreement for the setting of EU minimums with regard to cybercrime like revenge porn and online harassment.
—
The new directive would criminalise certain forms of online violence, such as cyber-stalking, cyber-harassment and “revenge porn”, across the bloc. It wants to strengthen the victims’ access to justice and rights to appropriate protection and improve coordination and cooperation between the national and EU-levels.
—
Council and Parliament started the inter-institutional negotiations. A trilogue meeting took place in October and two other meetings are scheduled for November and December. Some Member States and lawmakers are weary of criminalising some of these practices, as they believe it would cast too wide a net. Negotiations are likely to conclude successfully, but the clear delimitation and definition of practices to be criminalised will be key.
===Cyber Resilience Act===
The CRA wants to up Europe’s game when it comes to the safety of software and online products. It will impose a set of obligations on producers and distributors of software products, which might have adverse effects on free & open source software. Which is why we are following the file and have taken a position together with EDRi and the FSFE.
—
The trilogues are ongoing. The European Parliament committees have approved their positions in September. The Council's negotiating position is also available. There is a free and open source carve out there in Recital 10 on page 9.
—
The topic is very controversial, as it will make some participants in the chain of development more liable. Currently two sentences are attracting a lot of discussion: “This Regulation applies to free and open-source software only where such software is made available on the market in the course of a commercial activity.” and “The sole act of hosting free and open-source software on open repositories does not in itself constitute making available on the market. As such, most package managers, code hosting and collaboration platforms should not be considered to be distributors within the meaning of this Regulation.”
—
The question of liability for software and its code is complicated, messy and spread across four different files (CRA, Product Liability Directive, AI Act, AI Liability Directive). The risk is that the EU will end up with incompatible or even contradictory provisions. A more general approach would have been desirable. The CRA is likely to be adopted in this term.