Ruling from the CJEU on the validity of Article 17 of the Digital Single Market Directive (“the Directive”). Poland brought an action before the Court of Justice in case C-401/19 and requested the Court to annul Article 17 of the Directive. Last week, the Court of Justice ruled that Article 17 is valid. Article 17 contains a new regime for online content-sharing service providers’ liability when users are given access to upload works and other subject matter on their platform. In accordance with Article 17, service providers may be liable if users upload content that breaches copyrights or related rights. This actualizes a difficult balancing of the freedom of expression and the protection of copyright.
The way in which users create, produce and utilize works and other subject matter is continuously developing in accordance with the technological development. This, however, creates legal challenges for both users and rightholders especially regarding cross-border uses of works and other matters.
The Directive provides greater clarity regarding exceptions and limitations to copyright and related rights to digital and cross-border environments and the ambition is to harmonise EU law applicable to copyright and related rights in relation to digital and cross-border uses of copyright content.
It follows from Article 17(4)(b) and (c) that:
“If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:
made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event
acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).”
To avoid direct liability for their users’ uploads, the service providers can obtain an authorisation from the rightholders, for instance by concluding a licensing agreement.
If the service providers do not obtain an authorisation, they can still avoid liability if they – in addition to having made best efforts to obtain such an authorisation – comply with the conditions in Article 17(4) if they can demonstrate that they have “made best efforts to ensure unavailability” (b) and to “prevent future uploads” (c).
According to Poland, Article 17 infringes the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights (“the Charter”), as the requirements placed on the service providers makes it necessary for them to carry out prior automatic verification (filtering) of content uploaded online by users.
Poland argued that the liability regime established in Article 17 of the Directive undermines the essence of the right to freedom of expression and does not comply with the requirement that limitations imposed on that right must be proportional and necessary.
The Court found that the action brought by Poland should be dismissed.
The Court noted that in accordance with a general principle of interpretation, an EU measure must be interpreted, as far as possible, in a way that does not affect its validity and in conformity with primary law.
The specific liability regime has been accompanied by appropriate safeguards in order to ensure respect for the right to freedom of expression and information of the users in accordance with Article 52(1) of the Charter.
In its reasoning, the Court pointed out that the internet has become one of the principal means by which users exercise their right to freedom of expression and information. Online content-sharing platforms, in particular, play an important role in enhancing the public’s access to news and generally in facilitating the dissemination of information.
The service providers are de facto under the obligation to carry out a prior review of the content the users wish to upload on their platforms. In this respect, the service providers are required to use automatic recognition and filtering tools.
A limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. The requirements can, however, be formulated in terms which are sufficiently open to be able to keep pace with changing circumstances (the notion of ‘best efforts’).
In its reasoning, the Court puts emphasis on the specific result to be achieved in Article 17(7), which stipulates that the cooperation between service providers and rightholders “shall not result in the prevention of the availability” of legal content.
Measures adopted by service providers must be “strictly targeted” in order to enable effective protection of copyright but without affecting users who are using the platforms lawfully.
A filtering system that may not distinguish adequately between lawful and unlawful content could lead to the blocking of lawful communications and thus be incompatible with Article 17(7).
According to the Court, service providers “cannot be required to prevent the uploading and making available to the public of content which, in order to be found unlawful, would require an independent assessment of the content by them in the light of the information provided by the rightholders and of any exceptions and limitations to copyright” (paragraph 90).
At the same time, it cannot be excluded that in some cases availability of unauthorised content can only be avoided upon notification.
In addition, the application of this new liability system must not lead to any general monitoring obligation.
Furthermore, the Court stated that the protection of intellectual property right is not inviolable and should not be protected as an absolute right.
To respect the freedom of the online service providers to conduct a business, guaranteed in Article 16 of the Charter, and to ensure a fair balance between the fundamental rights at stake, the Court held that it may be necessary: “to leave those service providers to determine the specific measures to be taken in order to achieve the result sought; accordingly, they can choose to put in place the measures which are best adapted to the resources and abilities available to them and which are compatible with the other obligations and challenges which they will encounter in the exercise of their activity […]” (paragraph 75).
In conclusion, the Court held that EU legislature provided appropriate safeguards to protect the right to freedom of expression and information.
The internet is an important way for individuals to execute their right to freedom of expression and information and plays a significant role in the way the public gets its news and information in general.
The new regime’s reliance on automatic recognition and filtering tools contains a risk of “over-blocking”, which is acknowledged by the Court.
According to the statements above, the service providers has to make “best efforts” to prevent unlawful uploads but there is no obligation to block information unless the unlawfulness of the content is obvious. “Best efforts” imply that the Court, in our view, accepts the risk of “under blocking” and that content that is illegal – but not obviously illegal – can be uploaded. Only after a concrete evaluation by humans based on a notification by the rightholder can it afterwards be taken down. The Court’s statement in paragraph 75 is particularly significant and gives the service providers some important room for manoeuvre.
The Court’s decision is fully in line with the Opinion of Advocate General H. Saugmandsgaard Øe (now partner at Gorrissen Federspiel law firm). You can find his full Opinion here.
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