CJEU backs Copyright Directive Article 17 platform liability provisions

Dr Nils Rauer, intellectual property law expert at Pinsent Masons, said it was “hard not to conclude that the judges got it right”, and called their decision, handed down on Tuesday, “ultimately unsurprising”. Rauer added that the CJEU’s approach had “struck the right balance between freedom of expression and information on one hand and proprietary copyright on the other,” and would help courts come to reliable conclusions in future cases.

The ruling comes after a three-year legal battle between the European parliament and the Council of Ministers and Poland, which had fought to annul Article 17 because of an alleged conflict with Article 11 of the EU Charter of Fundamental Rights which covers freedom of expression and information.

Article 17 of the DSM states that platforms which allow users to upload digital content, like Youtube and Facebook, can be held liable if that content infringes copyright. To avoid liability, Article 17 requires the platforms to make “best efforts” to either obtain a license for the material or block unauthorised content. They must also act expeditiously once appropriately notified by a rightsholder to remove or disable unauthorised content and use "best efforts" to prevent future uploads. Measures to block illegal content may include ‘upload filters’ - software which uses an algorithm to filter the content.

The reform was intended to ensure that content creators are more likely to get paid when their work is accessed, but critics argued that it could result in 'over-blocking', where legitimate content is prevented from being uploaded by automated filtering technology. In March 2019, tens of thousands of protesters in cities across Europe demonstrated against Article 17, claiming that freedom of speech was at risk, alongside the sharing of content under fair use exemptions such as quotation, criticism, review, caricature, parody and pastiche.

In non-binding legal advice to the CJEU published last year, advocate general (AG) Henrik Saugmandsgaard Øe admitted that the new regime’s reliance on automated upload filters posed a significant risk of “over-blocking”. But he advised the CJEU not to annul Article 17, adding that that the provision would still be compatible with the EU charter on freedom of expression as long as online platforms abide by the safeguards included in the provision, and fulfil their monitoring obligations.

In its judgment, the CJEU agreed with Saugmandsgaard Øe’s assessment, stating that the court had “already held that a filtering system which might not distinguish adequately between unlawful content and lawful content” would be “incompatible with the right to freedom of expression and information, guaranteed in Article 11” of the EU charter.

The judges added that there were “several procedural safeguards” included in Article 17 that were sufficient to “protect the right to freedom of expression and information of users” in cases “where, notwithstanding the safeguards laid down in those latter provisions, the providers of those services nonetheless erroneously or unjustifiably block lawful content.”

The court held that the safeguards could ensure that online platforms “put in place effective and expeditious complaint and redress mechanisms” when lawful uses of works are mistakenly blocked by upload filters. The judges added that the provisions were specifically designed to protect “those uses covered by exceptions and limitations to copyright that are aimed at protecting freedom of expression and freedom of the arts.”

Commenting on the judgment, Rauer said: “Interestingly, the CJEU’s decision relies exactly on what Article 17 has been previously criticised for: the complexity of the measures to be taken by the service provider and the burdens imposed on both the user and the right holder. For example, the CJEU refers to the full set of obligations and safeguards defined around the mere deploying of automatic recognition and filtering tools. But while those tools are clearly part of the solution, they are only one piece which needs to be fit into a wider set of measures.”

He added: “The CJEU also seems to expect a scenario in which service providers are de facto required to carry out a prior review of the content that users wish to upload to their platforms, but it is doubtful as to whether this will happen. But while major rightsholders or rights distributors may make use of such structural opportunities the individual copyright owner will hardly go through the process of informing all the relevant platforms even if adequate procedures will be implemented.”

“In any case, the CJEU’s decision rests on the understanding that a lively exchange of information will be triggered by Article 17 involving all three protagonists: the user, the rightsholder and the platform. Essential to that idea is the fact that the measures taken by all three must eventually lead to an effective process of separating illegal content from legal content and to apply the filtering only to illegal content. The judges concluded that Article 17 provides a sound set of instruments safeguarding the line to be drawn at the right place,” Rauer said.

He added: “The CJEU rightly emphasises that Article 17 introduces several procedural safeguards, which protect the right to freedom of expression and information of users in cases where, nonetheless, the providers of the services erroneously or unjustifiably block lawful content. While that is true, member states still have quite some discretion as to the specific design of such procedures. Germany, for example, enacted a very detailed regime, whereas The Netherlands left it to the service providers to come up with a concept. In any case, only if users and rightsholders do make use of the procedural tools, Article 17 can achieve its intended purpose.”