According to the press release of the Court of Justice of the European Union (CJEU) of 15 July 2021 in Case C-401/19 – Poland v Parliament and Council (here), the Advocate General (AG) takes the position that Article 17 of Directive 2019/790 on copyright and related rights in the Digital Single Market is compatible with the freedom of expression and information as guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union. While Article 17 entails an interference with freedom of expression, that interference satisfies the conditions laid down in the Charter of Fundamental Rights.
Article 17 of Directive 2019/790 establishes that providers of online sharing services are directly liable when protected subject matter is illegally uploaded by users of their services. They are especially obliged to actively monitor the content uploaded by users in order to prevent the uploading of protected subject matter which the right holders do not wish to make accessible on those services. In many situations, such preventive monitoring will take the form of filtering using automatic content recognition tools.
Poland brought an action before the CJEU for annulment of Article 17 of Directive 2019/790 based on the ground that it infringes the freedom of expression and information as guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (“Charter”). The CJEU therefore will have to determine whether, and if so under what conditions, imposing monitoring and filtering obligations on online intermediary service providers is compatible with that freedom.
The AG proposed that the Court should find that Article 17 of Directive 2019/790 is compatible with the freedom of expression and information and dismiss the action.
He argued that, while the contested provisions entail an interference with the freedom of expression of the users of online sharing services, this interference satisfies the conditions laid down in Article 52(1) of the Charter and is therefore compatible with the Charter. While – due to the particular importance of the Internet to the freedom of expression – public authorities cannot oblige online intermediaries to monitor content shared or transmitted through their services in search of any kind of illegal or undesirable information, the EU legislator may choose to impose certain monitoring obligations, in respect of specific illegal information, on certain online intermediaries.
Article 17 of Directive 2019/790 meets an objective of general interest recognised by the Union by ensuring effective protection of intellectual property rights. In the AG’s view, the EU legislator has a margin of discretion to reconcile freedom of expression with the intellectual property rights of right holders. Hereby the legislator can choose to modify the liability regime applicable to online sharing service providers by imposing monitoring obligations on some of them.
The AG acknowledged that this entails a significant risk of “over-blocking” lawful information, since online sharing service providers may tend to prevent the uploading of any and all content reproducing protected subject matter identified by the right holders, including content making legitimate use of such subject matter, such as that covered by the exceptions and limitations to copyright. The use of automatic content recognition tools increases that risk. However, in the AG’s view, the EU legislator provided sufficient safeguards to minimise that risk.
First, the right of users of online sharing services to make legitimate use of protected subject matter – including the right to rely on exceptions and limitations to copyright – was ensured since providers of such services are not allowed to preventively block any and all content reproducing the protected subject matter, including lawful content. Thus, it would not be sufficient for users to have the possibility, under a complaints and redress mechanism, to have their legitimate content re-uploaded after such preventive blocking.
Second, the EU legislator stressed that Article 17 of Directive 2019/790 should not impose a general monitoring obligation on sharing service providers as, according to the AG, those providers cannot be turned into judges of online legality, responsible for coming to decisions on complex copyright issues. Consequently, sharing service providers must only detect and block content that is “identical” or “equivalent” to the protected subject matter identified by the right holders, that is to say content the unlawfulness of which may be regarded as manifest in the light of the information provided by the right holders.
The AG’s Opinion is not binding on the CJEU. The Judges of the Court are now beginning their deliberations in this case.