The Court of Justice of the European Union has given its ruling in the case of Case C-401/19 Poland v Parliament and Council. Article 17 of Directive 2019/790 on copyright and related rights in the Digital Single Market establishes the principle that providers of online content-sharing services are directly liable when protected subject matter is illegally uploaded by users of their services. However, the providers concerned may be exempt from that liability. For the exemption to apply, they must, under Article 17 of the Directive, actively monitor the content uploaded by users, to prevent the uploading of protected subject matter which the rightsholders do not wish to make accessible on those services.
Article 17 was controversial when the Directive was passing through the legislative process and Poland brought an action before the Court of Justice for its annulment. Poland said that Article 17 infringes the freedom of expression and information in the Charter of Fundamental Rights of the European Union.
The Court has dismissed the action.
It says that to benefit from the exemption from liability in Article 17, online content-sharing service providers must carry out a prior review of the content that users wish to upload to their platforms, provided that those service providers have received the relevant and necessary information from the rightsholders. In addition, those providers are, depending on the number of files uploaded and the type of protected subject matter in question, required to use automatic recognition and filtering tools. According to the Court, such prior review and filtering are liable to restrict an important means of disseminating online content. The specific liability regime under the Directive involves a limitation on the exercise of the right to freedom of expression and information of users of those content-sharing services.
The Court then considered the justification and proportionality for such a limitation. The Directive sets out a clear and precise limit on the limitation, by excluding, in particular, measures which filter and block lawful content when uploading. The Court said that a filtering system which might not distinguish adequately between unlawful content and lawful content, which could lead to the blocking of lawful communications, would be incompatible with the right to freedom of expression and information and would not respect the fair balance between that right and the right to intellectual property.
Article 17 provides that service users are authorised, by national law, to upload content generated by themselves for eg parody or pastiche and that they will be informed, by the service providers, that they can use works and other protected subject matter under the exceptions or limitations to copyright and related rights, provided for in EU law.
In addition, the liability of online content-sharing service providers for ensuring that certain content is unavailable only applies if the rightsholders concerned provide them with the relevant and necessary information with regard to that content.
As well as this, Article 17 states that its application must not lead to any general monitoring obligation, which means that the providers of online content-sharing services cannot be required to prevent the uploading and making available to the public of content which, to be found unlawful, would require an independent assessment of the content by them in the light of the information provided by the rightsholders and of any exceptions and limitations to copyright.
It also introduces several procedural safeguards, which protect the right to freedom of expression and information of service users if the providers of the services erroneously or unjustifiably block lawful content.
Having considered these factors, the Court has ruled the obligations in Article 17 have been accompanied by appropriate safeguards by the EU legislature to ensure respect for the right to freedom of expression and information of the users of those services, and a fair balance between that right, on the one hand, and the right to intellectual property, on the other. That said, member states must, when transposing Article 17 of the Directive into their national law, take care to allow a fair balance to be struck between the various fundamental rights protected by the Charter of fundamental rights.
