Computer says no to my upload? Article 17 on filtering and the GDPR prohibition of automated decision-making

This chapter discusses the so-called filtering obligation in Article 17 of the new EU copyright directive (2019/790), an obligation that has been heavily debated since it was first introduced. A copyright filter depends on the recognition of copyright-protected work through the automatic processing of data and blocks the uploading of this content. The filter establishes the boundaries between authorised and unauthorised communications and executes decisions regarding individual upload without the intervention of a human agent. It follows that the use of an automated process raises questions about the filtering obligation’s relationship with Article 22(1) of the GDPR (stating that the ‘data subject shall have the right not to be subject to a decision based solely on automated processing’), and as the European Commission has recognised, the filtering obligation itself raises questions about its compatibility with respect for fundamental rights, particularly the right to freedom of expression.