Disagreement has ruled the member states' discussions over the EU’s draft copyright legislation, which is currently being finalized between the member states in the Council and the European Parliament.

But governments were not split over the free speech and fundamental rights concerns posed by the proposal’s Article 13, which would force internet companies to censor users’ posts by applying upload filters.

Sources familiar with the negotiations told Liberties that France and Germany - countries that, given their size, can make or break a Council deal - needed to resolve their disagreement over which companies would be forced to install upload filers. Berlin and Paris agreed last Friday, giving a green light for the Council's agreement, due on 8 February. At the COREPER ambassadors' meeting, member state representatives are expected to rubber-stamp the draft mandate, paving the way for the final trialogue talks with the European Parliament on 11 February.

Given the short time until the European elections and the end of the EU Commission's mandate, both MEPs and the representatives of the member states are keen to push through the agreement in a few days and pass the directive in March or April 2019.

What’s the deal between Germany and France about?

In a nutshell, France thinks that Article 13 is good and should be applied to all online platforms. In their interpretation, whether upload filtering is applied to small- and medium-size businesses will be up to the court. Germany, on the contrary, argues in defence of European internet companies, and in particular that startups and small- and medium-size companies with a turnover under 20 million euros should be excluded. The latter is similar to the EP’s proposal, which excludes firms with a turnover below 10 million euros.

As a middle ground, the Franco-German deal resulted in a draft agreement applying to all for-profit platforms except for these that fulfill all three of these narrow criteria: the company is public for less than 3 years; its annual turnover is below 10 million euros; and it has fewer than 5 million unique users a month.

Proper safeguards are missing

Liberties is afraid that this would result a large number of apps and sites that do not meet all of these three criteria finding themselves obliged to install upload filters, burdening them with extra cost and forcing them to limit their users' free speech. These algorithms won’t be able to distinguish between copyright infringement and legal works such as parody, memes and critique. Proper safeguards are missing from the text to avoid the disproportionate limitation of free speech.

Forcing digital companies to become gatekeepers would result in suppressed public debate and, ultimately, pose a threat to our fundamental rights and the strength of our democracy.

The time pressure ahead of the elections raises one significant question: given the reluctance of member states to defend free speech online against the upload filter, will there be enough courage in MEPs at the final plenary vote of the Copyright Directive to reject Article 13?