Art. 17 DSM Directive, which deals with the liability of certain online services for infringing activities of their users, had already been controversial in the legislative process – and the debate is not over yet.
Following the adoption of Art. 17 in April 2019, Poland brought an action for annulment before the CJEU. The aim of the action was to have (parts of) Art. 17 DSM Directive declared null and void on the grounds of a violation of freedom of expression and information, Art. 11 of the EU Charter of Fundamental Rights (ECFR). Poland’s key argument was that Art. 17 DSM Directive moves away from the “notice and takedown” procedures that have been accepted for years and instead makes platforms responsible for taking active actions to avoid liability for copyright infringement. Poland further argued that the obligations imposed by Art. 17 DSM Directive would lead to the implementation of filtering systems, and that these systems would not be able to distinguish sufficiently between permitted and prohibited uses, resulting in overblocking.
After the Opinion was due to be released several months ago, the Advocate General Saugmandsgaard Øe finally released it on 15 July (see here), holding the following:
1. Art. 17 DSM Directive requires the use of filtering technologies
The Advocate General agrees that compliance with Art. 17 DSM Directive will require the platforms concerned to deploy filtering technologies. Which particular technology is appropriate shall depend on the nature of the platform and the type of works. However, only those services “which manage a significant, or even huge, volume of content” are to be covered by Art. 17 DSM Directive. This may reduce the personal scope of Art. 17 DSM Directive.
2. Art. 17 DSM Directive is compatible with Art. 11 ECFR
Art. 17 DSM Directive does interfere with Article 11 ECFR – both the users and the platforms are directly affected in their freedom of expression and information. However, this interference is justified. The essence of freedom of expression is not undermined by Art. 17 DSM Directive if the standard of liability is determined correctly – that is to mandate specific monitoring but not general monitoring.
3. Use of upload-filters does not lead to overblocking or a general monitoring obligation
The filtering obligation as spelled out in Art. 17 DSM Directive does not lead to a general monitoring obligation, nor to overblocking – provided that sufficient safeguards are in place. The EU legislators did provide for such safeguards in Art. 17(5), (7), (8) and (9) DSM Directive. In this context, particular attention must be paid to Art. 17(7) DSM Directive, according to which online services shall not prevent the making available of content that legitimately reproduces works and other protected subject matter (e.g. quotations, criticism or parody).
In order to sufficiently respect the freedom of expression, user rights must be respected before the upload. Protection only in a subsequent complaints procedure would be insufficient because it would systematically disadvantage users. Online services must therefore fulfil two obligations at the same time when user content is uploaded: preventing infringing content on the one hand, and making available lawful content on the other.
It follows from the prohibition of general monitoring obligations that only content that does not require independent assessment by the platform can be affected. This means that the filtering obligation only applies to content whose illegality is either obvious or established by a court – it must be “manifestly infringing”. Consequently, ex ante blocking may only take place for content “which is ‘identical’ or ‘equivalent’”. An “identical content” concerns identical reproductions, without additional elements or added value. An “equivalent content” concerns content “which reproduces that subject matter in the same way, but with insignificant alterations, with the result that the public would not distinguish it from the original subject matter (for example in the case of simple technical alterations intended to circumvent the filtering system, such as a change in format, reversing the image or changing its speed, and so forth)”. Therefore, blocking should not take place in questionable cases.
4. User rights are indispensable
Art. 17(7) DSM Directive establishes subjective – and enforceable – rights of users. This also means that platforms cannot declare lawful content inadmissible on the basis of their T&Cs. Art. 17 DSM thus also strengthens user rights and thereby achieves a fair balance..
5. Postscript to the Guidance published by the EU Commission
In a short postscript, the Advocate General also takes a very critical view on the EU Commission's Guidance published recently (see our post here). Here, the Advocate General particularly raises concerns with regard to the ‘earmarking’ of supposedly harmful content. He criticizes the fact that it would be at the free discretion of the rights holder to mark content in this way andpoints out that this would entail an autonomous ex ante assessment of the platforms.
Outlook
The process of transposing Art. 17 DSM Directive into national law is still in full swing. Only a few Member States have already transposed the Directive into national law (see our posts for the transposition in Germany and France here and here). The Opinion of the Advocate General on the interpretation and safeguards of user rights may thus still have an impact on the legislative processes in the Member States – even though (or because) it will be several months before the CJEU renders its decision.
For the online services concerned, the Opinion provides further interim guidance on their new obligations, after the EU Commission recently published its views on Art. 17 DSM Directive. If the CJEU follows the Opinion, EU Commission’s Guidance might in fact have to be revised. Due to the lack of legal binding force of that Guidance, it is possible that , where the Opinion and the Guidance contradict each other, the courts will resort to the now published Opinion for the interpretation of the obligations of the online services.
The discussions about Art. 17 DSM Directive thus remain thrilling – we will continue to closely follow and report on the process.
Authored by Morten Petersenn, Nils Peters, Anthonia Ghalamkarizadeh and Florian Richter
