Free Speech by Design
number of researchers, public servants, and
lawmakers have embraced the approach of
values such as fundamental rights in the design of
. There has been much interest in this
(privacy by design)4 and of nanotechnologies (safe
. Comparatively, it has received relatively
in the debate on anti-circumvention provisions6), but
interest in the idea has grown with the increasing
reliance by online platforms on automatic content
recognition technologies for algorithmic copyright
DSM directive, we will argue that such algorithmic
guarantees of freedom of speech are the best way
for Online Content Sharing Providers (OCSSPs)8
correlations or, more generally, to derive information to
D. Le Métayer, Understanding algorithmic decision-making:
Opportunities and challenges (2019) Study for the European
Parliamentary Research Service.
Principles. Implementation and Mapping of Fair
NanoEthics 11(3), p. 307; I.
Nanoethics, ,11(3), p. 297.
6 For a critique of this idea of algorithmic fair use in digital
right management systems, see D. L Burk & J. E. Cohen
(2001) Harv. JL Tech, 15
(2003) Communications of the ACM , 46(4), p. 51. The title of
the present article is an homage to Dusollier’s article, as we
the InfoSoc directive in this regard, and will be especially
concerned attentive to the effectiveness of our proposals.
Review 64. Contra Burk, D. L. (2019). Algorithmic Fair Use.
U. Chi. L. Rev. 86
8 According to art. 2(6) of the directive, an online content-
society service of which the main or one of the main
purposes is to store and give the public access to a large
amount of copyright-protected works or other protected
to achieve the twofold obligation from article 17
of unauthorized works
while also not preventing
. This interpretation derives from a
recent developments in the CJEU case law and
its central paradigm of the fair balance between
fundamental rights, which has gradually recognized
and that their effectiveness is especially crucial for
designed as built-in preservations for the right
of freedom of speech in our copyright law13, it is
especially important that preventive measures taken
under art. 17(4) do not systematically interfere with
balance between the fundamental rights at stake14.
Among commentators, it is commonly held that
subject matter uploaded by its users, which it organises and
9 DSM Directive, art. 17(4) b.
10 DSM Directive, art. 17(7) para 1; DSM Directive, art. 17(9),
11 CJEU, C117/13, Eugen Ulmer (11 September 2014) para 43;
CJEU, C-516/17, Spiegel Online v. Beck (29 July 2019), para 54,
CJEU, C-469/17, Funke Medien v. Germany (29 July 2019), para
12 CJEU, C-516/17, Spiegel Online c. Beck (29 July 2019), para 57.
13 CJEU, C-145/10, Painer c. Standard VerlagsGmbH e.a. (1st
december 2011), para 134; CJEU, C-516/17, Spiegel Online
v. Beck, (29 July 2019), para 57. CJEU, C-201/13, Deckmyn v.
Vandersteen et al. (3 September 2014), para 27; DSM Directive,
14 For a discussion of the many links between the
droits intellectuels, entre autres droits
fair balance between copyright and fundamental rights in