“The CJEU set out six reasons why the obligations in Article 17 ‘do not disproportionately restrict the right to freedom of expression and information of users those services.’”
The Court of Justice of the European Union (CJEU) has rejected a legal challenge to Article 17 of Directive 2019/790 on Copyright in the Digital Single Market. (Case C-401/19 Republic of Poland v. European Parliament and Council, ECLI:EU:C:2022:297.)
The challenge was brought by the government of Poland. It argued that Article 17 of the Directive, which concerns the liability of online service providers for copyright-infringing content uploaded by users, infringed the rights to freedom of expression and information.
The rights to freedom of expression and information are guaranteed in Article 11 of the Charter of Fundamental Rights of the EU.
In its judgment today (April 26, 2022), the Court’s Grand Chamber said that the obligation to review content in Article 17 “has been accompanied by appropriate safeguards by the EU legislature in order to ensure … respect for the right to freedom of expression and information of the users of those services, guaranteed by Article 11 of the Charter, and a fair balance between that right, on the one hand, and the right to intellectual property, protected by Article 17(2) of the Charter, on the other.”
The Court added that, when transposing the Directive into national law, EU Member States must take care to allow a fair balance to be struck between the various fundamental rights protected by the Charter. It added: “Further, when implementing the measures transposing that same provision, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that provision but also make sure that they do not act on the basis of an interpretation of the provision which would be in conflict with those fundamental rights or with the other general principles of EU law, such as the principle of proportionality.”
A Controversial Directive
The Directive was adopted in June 2019 following extensive discussion and controversy. Article 17 (Article 13 of the draft Directive) was opposed by some human rights groups, technology companies and academics. They argued in particular that automated filtering mechanisms, such as those implemented by online service providers, could violate users’ freedom of expression.
Poland’s complaint related to Article 17(4). This provides that online content-sharing service providers are liable for unauthorized acts of communication to the public of copyright-protected works and other subject matter unless they have met three conditions: (a) made best efforts to obtain an authorization; (b) made best efforts to ensure the unavailability of copyright works that have been properly notified by rights holders; and (c) acted expeditiously on receiving a sufficiently substantiated notice to remove the works from their websites and made best efforts to prevent future uploads.
In a 100-paragraph judgment, the Court set out in detail why the legislation contained sufficient safeguards to respect freedom of expression and information.
In particular, the Court said Article 17(7) states that the Directive should not result in the prevention of the availability of non-infringing works and Article 17(9) states that the Directive shall in no way affect legitimate uses.
The Directive therefore reflected the Court’s case law, which states that measures adopted by service providers must “be strictly targeted in order to enable effective protection of copyright but without thereby affecting users who are lawfully using those providers’ services.” Moreover, it said the measures regarding liability in Article 17(4) are necessary to protect IP rights.
The Court set out six reasons why the obligations in Article 17 “do not disproportionately restrict the right to freedom of expression and information of users those services.” These include the requirement that filtering systems distinguish between lawful and unlawful content, the uniform treatment of exceptions or limitations to copyright and the ruling out of a “general monitoring obligation.”
Transposition of the Directive
The deadline for EU Member State to transpose the Directive into their national laws was June 7, 2021. However, only three of the 27 Member States met the deadline. According to the European Commission’s website, 11 Member States have still not transposed the Directive.
Meanwhile, the EU Council and European Parliament last week reached provisional agreement on the Digital Services Act, which regulates online illegal content and applies to online intermediaries providing services in the EU. It provides for fines of up to 6% of total annual turnover for very large online platforms.
Neither the Copyright Directive nor the Digital Services Act apply in the UK, due to Brexit.
The CJEU judgment was the first ever to be broadcast live on the Court’s website, as part of a new initiative to livestream some judgments opinions. Some hearings are also being streamed for a pilot period.
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