On the tenth of April 2025, new guidelines got here into drive as a part of Elon Musk’s crackdown on impersonation accounts on X (previously often called Twitter). Underneath these guidelines, any account that impersonates, parodies, or caricatures one other comes underneath two necessities: first, that their username should start with a key phrase like ‘faux’ or ‘parody’; and second, that the account can’t use the identical profile image because the account they imitate. Broadly, then, these guidelines imply {that a} consumer can’t publish any parodic or caricaturing content material to X/Twitter except they differentiate themselves from the unique account on this particular means.
This publish goals to discover how that rising system of guidelines interacts with current provisions of EU copyright legislation.
The CDSM Directive
Article 17 of the Directive on Copyright within the Digital Single Market (“CDSM Directive”) governs on-line content-sharing service suppliers (“OCSSPs”) of their dealing with of copyright works within the on-line house.
Artwork 2(6) defines an OCSSP as a supplier of an data society service of which a major function is to retailer and provides the general public entry to massive quantities of copyright-protected works or different user-uploaded material, which it organises and promotes for profit-making functions. X/Twitter is an data society service. It hosts and provides the general public entry to massive numbers of tweets – brief textual and visible user-uploaded items, a lot of which might be copyright-protected. The platform does this for a profit-making function. Due to this fact, it may be mentioned that X/Twitter falls throughout the definition of an OCSSP, and is subsequently topic to the principles of Artwork 17.
Artwork 17’s most notable provisions, contained in Artwork 17(1) and (4), handle the duties of OCSSPs in responding to the truth that lots of the works they host will infringe copyright. It’s, nonetheless, Artwork 17(7) that’s of specific curiosity to the current dialogue. The related elements learn:
“The cooperation between [OCSSPs] and rightholders shall not consequence within the prevention of the supply of works or different material uploaded by customers which don’t infringe copyright […]
Member States shall make sure that customers in every Member State are capable of depend on any of the next current exceptions or limitations when importing and making obtainable content material generated by customers on on-line content-sharing providers:
[…] (b) Use for the aim of caricature, parody or pastiche.”
The primary paragraph establishes that the availability applies in conditions involving cooperation between OCSSPs and rightsholders. Notably, it imposes no requirement that such cooperation relate particularly to any precise or specific act of copyright infringement. This means that any type of cooperation – no matter its substantive focus – is ample to set off the applying of Artwork 17(7). X/Twitter’s personal framing of its new guidelines, that are described as guides and instruments offered to customers to help them of their navigation of the platform, reveals the cooperative nature of the rising adjustments. By offering such steerage, it seems that X/Twitter is working with rightsholders to make sure that their expertise of the platform is mutually useful – with the cooperative character of the brand new guidelines thus highlighted, evidently Artwork 17(7) can be relevant right here.
The second paragraph supplies that Member States shall make sure that all their customers of an OCSSP can depend on the copyright exception of caricature, parody, and pastiche, amongst others, when importing content material, as confirmed clearly in recital 70.
The Parody Exception
The rule that copyright shouldn’t be infringed by a caricature, parody, or pastiche has roots in Artwork 5(2)(okay) InfoSoc Directive, the place it’s an non-obligatory exception to copyright infringement that Member States can implement ought to they want. In Artwork 17(7) of the CDSM Directive, by guaranteeing its availability within the on-line sphere, the EU have made the exception necessary in digital contexts (see recital 70). Which means all Member States are obligated to make sure that customers of OCSSPs can depend on this exception when importing content material to their platforms.
Nevertheless, this view of the parody exception could be pushed additional.
In Funke Medien (C‑469/17), the Courtroom of Justice of the EU (“CJEU”), sitting as a Grand Chamber, famous that sure exceptions within the InfoSoc Directive, such because the citation exception, are usually not mere exceptions from a discovering of copyright infringement, however fairly signify rights conferred upon customers of copyright works. In the identical vein, the parody, caricature, and pastiche exception might effectively comply with the identical interpretation contemplating its freedom of expression connotation, a connotation accepted as undisputed at para [20] in Deckmyn (C‑201/13). Usually, the potential transformation of copyright exceptions into constructive rights was echoed within the Artwork 17(7) context in Poland v Parliament and Council (C 401/19), the place the CJEU held that underneath this provision, Member States had been obligated to make sure that customers of OCSSPs might add parodic and caricaturing content material to the web house.
The Parody Exception and the New X/Twitter Guidelines
If Member States are underneath an obligation to keep up customers’ constructive rights to add parodic and caricaturing content material to an OCSSP like X/Twitter, then Musk’s new guidelines would possibly look like in battle with Artwork 17(7).
It have to be recalled that in Deckmyn (C‑201/13), the CJEU dominated {that a} parody constitutes an expression of humour or mockery whereas evoking the prevailing work although remaining noticeably completely different from it. OCSSP customers subsequently appear to own a constructive proper to add a parody to Twitter/X, as long as the parody falls inside this that means. Ought to the flexibility to add parody be constrained by the imposition of any additional necessities, similar to a consumer having to positively determine themselves in a sure means, then absolutely this makes the train of the correct to parody conditional on additional standards which aren’t mandated by EU copyright legislation. To that finish, one would possibly argue that the parody exception shouldn’t be given its full impact. Underneath Artwork 17(7), then, EU Member States might very effectively be underneath an obligation to withstand these new guidelines from X/Twitter.
In Deckmyn, the CJEU notably dominated {that a} parody needn’t attribute its supply, fulfil a vital function, or be authentic in its personal proper. It’s doable to deduce from this a passion to display that the train of the parody proper can’t be made conditional on different surplus necessities. It subsequently seems that X/Twitter’s new guidelines, which introduce the 2 necessities on uploaders of parodic and caricaturing content material, have the impact of creating OCSSP customers’ proper to take action conditional on necessities not necessitated underneath EU legislation.
It needs to be famous as an apart that Artwork 17(7) covers greater than parodies, but in addition caricature and pastiche. Neither caricature nor pastiche have ever been outlined by the CJEU (although the upcoming Pelham II judgement is anticipated to outline the latter – see extra right here and right here). This isn’t, although, a hinderance to the above conclusion, since the truth that these guidelines seem to fall in need of even simply the parody aspect is sufficient to deliver them in battle with Artwork 17(7).
Potential Responses
There are two potential responses that might be made by X/Twitter in defence of their guidelines.
First, it’s doable that X/Twitter might counsel that they aren’t an OCSSP in any respect underneath the Artwork 2(6) CDSM Directivedefinition, making Artwork 17(7) inapplicable ab initio. Nevertheless, two arguments problem this. First, to take action X/Twitter might probably depend on the exemption for digital communication service suppliers in Artwork 2(6) CDSM Directive. Nevertheless, as per Artwork 2(4) Digital Communications Code, service suppliers can’t come underneath this heading in the event that they train editorial management over their content material – by indexing, fact-checking, eradicating, and spotlighting sure posts, X/Twitter is maybe engaged in such management and subsequently can’t fall throughout the exemption from the OCSSP definition. Second, it needs to be famous that the Fee have launched an motion towards X/Twitter of their capability as a ‘very massive on-line platform’ underneath the Digital Companies Act; since that is outlined in Artwork 3(i) of the Act to imply a content material internet hosting service, it appears the OCSSP definition is of course becoming anyway, so the parody guidelines are inescapable on these grounds.
There’s a second potential line of defence. As Funke Medien demonstrated, although the consumer has a proper to sure makes use of which can very effectively embody parody, this have to be balanced with the rights and pursuits of others. As famous above, X/Twitter have framed their guidelines as crucial to assist on-line customers perceive deceptive data. In actual fact, these guidelines are a response to the Fee’s motion alleging that the platform’s present guidelines on the matter fall in need of on-line security obligations on misleading data underneath the Digital Companies Act. Due to this fact, it’s believable that, studying Artwork 17(7) CDSM Directive together with different obligations of EU legislation, although the brand new guidelines would possibly signify a problem for the legislation of copyright, on stability they may represent a suitable response to the broader legislative context.
Briefly, then, whereas X/Twitter’s new guidelines sit uncomfortably with Artwork 17(7) CDSM Directive and the duty on Member States to keep up their customers’ proper to add parodic and caricaturing content material on-line, an exploration of the legislation reveals that their precise authorized standing stays unsure.
