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 generally known as Twitter). Beneath these guidelines, any account that impersonates, parodies, or caricatures one other comes beneath two necessities: first, that their username should start with a key phrase like ‘pretend’ or ‘parody’; and second, that the account can not use the identical profile image because the account they imitate. Broadly, then, these guidelines imply {that a} person can not submit any parodic or caricaturing content material to X/Twitter except they differentiate themselves from the unique account on this particular method.
This submit goals to discover how that rising system of guidelines interacts with present provisions of EU copyright regulation.
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 area.
Artwork 2(6) defines an OCSSP as a supplier of an data society service of which a foremost function is to retailer and provides the general public entry to massive quantities of copyright-protected works or different user-uploaded subject material, which it organises and promotes for profit-making functions. X/Twitter is an data society service. It hosts and offers the general public entry to massive numbers of tweets – quick textual and visible user-uploaded items, a lot of which may very well be copyright-protected. The platform does this for a profit-making function. Due to this fact, it may be mentioned that X/Twitter falls inside the definition of an OCSSP, and is due to this fact topic to the foundations 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 explicit curiosity to the current dialogue. The related elements learn:
“The cooperation between [OCSSPs] and rightholders shall not end result within the prevention of the supply of works or different subject material uploaded by customers which don’t infringe copyright […]
Member States shall be sure that customers in every Member State are in a position to depend on any of the next present exceptions or limitations when importing and making out there 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 supply applies in conditions involving cooperation between OCSSPs and rightsholders. Notably, it imposes no requirement that such cooperation relate particularly to any precise or explicit act of copyright infringement. This means that any type of cooperation – no matter its substantive focus – is ample to set off the appliance of Artwork 17(7). X/Twitter’s personal framing of its new guidelines, that are described as guides and instruments offered to customers to assist them of their navigation of the platform, exhibits the cooperative nature of the rising adjustments. By offering such steering, 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) could be relevant right here.
The second paragraph gives that Member States shall be 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 just isn’t 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 obligatory 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 will 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, usually are not mere exceptions from a discovering of copyright infringement, however moderately characterize rights conferred upon customers of copyright works. In the identical vein, the parody, caricature, and pastiche exception may properly observe the identical interpretation contemplating its freedom of expression connotation, a connotation accepted as undisputed at para [20] in Deckmyn (C‑201/13). Typically, 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 beneath this provision, Member States have been obligated to make sure that customers of OCSSPs may add parodic and caricaturing content material to the web area.
The Parody Exception and the New X/Twitter Guidelines
If Member States are beneath 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 seem 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 present work although remaining noticeably completely different from it. OCSSP customers due to this fact appear to own a constructive proper to add a parody to Twitter/X, as long as the parody falls inside this which means. Ought to the power to add parody be constrained by the imposition of any additional necessities, resembling a person having to positively determine themselves in a sure method, then absolutely this makes the train of the correct to parody conditional on additional standards which aren’t mandated by EU copyright regulation. To that finish, one would possibly argue that the parody exception just isn’t given its full impact. Beneath Artwork 17(7), then, EU Member States might very properly be beneath 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 attainable to deduce from this a passion to reveal that the train of the parody proper can’t be made conditional on different surplus necessities. It due to this fact 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 beneath EU regulation.
It must 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 ingredient is sufficient to convey them in battle with Artwork 17(7).
Potential Responses
There are two potential responses that may very well be made by X/Twitter in defence of their guidelines.
First, it’s attainable that X/Twitter may recommend that they don’t seem to be an OCSSP in any respect beneath the Artwork 2(6) CDSM Directivedefinition, making Artwork 17(7) inapplicable ab initio. Nevertheless, two arguments problem this. First, to take action X/Twitter may 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 not come beneath 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 due to this fact can not fall inside the exemption from the OCSSP definition. Second, it must be famous that the Fee have launched an motion towards X/Twitter of their capability as a ‘very massive on-line platform’ beneath 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 person has a proper to sure makes use of which can very properly embody parody, this have to be balanced with the rights and pursuits of others. As famous above, X/Twitter have framed their guidelines as vital to assist on-line customers perceive deceptive data. Actually, 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 beneath the Digital Companies Act. Due to this fact, it’s believable that, studying Artwork 17(7) CDSM Directive along side different obligations of EU regulation, although the brand new guidelines would possibly characterize a problem for the regulation of copyright, on steadiness they could 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 regulation reveals that their precise authorized standing stays unsure.
