Another episode in the saga concerning Article 17 of the DSM Directive (Directive 2019/790 on Copyright in the Digital Single Market): on 15 July 2021, Advocate General Saugmandsgaard Øe delivered his opinion in Poland’s annulment proceedings against Article 17(4) (b) and (c) of the DSM Directive, a few weeks after the European Commission issued its guidance on Article 17 to EU Member States (previously commented here) and the CJEU delivered its judgment in the case Youtube and Cyando (previously commented here).
Article 17 of the DSM Directive provides that content-sharing platforms such as YouTube perform an act of communication to the public when they give that public access to copyright-protected works illegally uploaded by their users. As a result, these platforms have to obtain an authorisation from the rightsholders in order to communicate such content via their website. In order to avoid liability, they have to monitor the content posted by the users of their services in order to prevent the uploading of protected works and subject matter which the rightsholders do not wish to make accessible on these platforms. This monitoring generally takes the form of filtering by automatic content recognition tools.
Preventive monitoring of uploaded content constitutes, for the Advocate General, an interference with the freedom of expression of platform users and with the public’s freedom to receive information. It is clear, in the Advocate General’s view, that this interference is attributable to the EU legislature (Article 17 of the DSM Directive) since the liability and exemption of liability regime established imposes an indirect obligation on platforms to filter their users’ content.
In his opinion, the Advocate General sets out that interference with the freedom of expression and information enshrined in Article 11 of the EU Charter of Fundamental Rights (“EU Charter”) and Article 10 of the European Convention on Human Rights (“ECHR”) is permissible provided that it complies with the conditions laid down in Article 52(1) of the EU Charter, interpreted in accordance with Article 10(2) of the ECHR: the interference must (i) be “prescribed by law”, (ii) respect the “essence” of the infringed right, and (iii) comply with the principle of proportionality.
In the present case, the Advocate General held that Article 17 of the DSM is compatible with the freedom of expression and information since it satisfies all of the above conditions.
With regard to the essence of the right to freedom of expression, the Advocate General held that content-sharing platforms must indeed monitor all of the content uploaded by their users. However, it is a matter of searching among that content for “specific works or other subject matter” for which the rightsholders will have already communicated to them the “relevant and necessary information” or a “sufficiently substantiated notice”. In the Advocate General’s view, this suffices to demonstrate that Article 17 lays down, indirectly, a “specific” monitoring obligation and to rule out an infringement of the essence of the right to freedom of expression.
In respect of proportionality, the Advocate General is of the view that the limitation on the exercise of the fundamental rights at stake, namely the freedom of expression and information, by Article 17 of the DSM Directive is appropriate, necessary and proportionate. The Advocate General finds the EU legislature’s choice to favour the rightsholders and creative industries not to be disproportionate considering the safeguards provided in Article 17 to minimise the risks of excessive blocking of lawful information. These safeguards include:
(i) the recognition, in Article 17(7) of the DSM Directive, of the right of users to make legitimate use of protected subject matter (for example protected content covered by the exceptions and limitations to copyright). Article 17(7) provides for an obligation to achieve a certain result: the platforms should not prevent legitimate content being uploaded. This obligation to obtain a certain result is stronger than the obligation of means consisting of the protection of the interests of the rightsholders.
(ii) the fact that Article 17(8) of the DSM Directive excludes a general monitoring obligation for content-sharing platforms. Platforms should only be able to detect and block content that is “identical” or “equivalent” to the protected subject matter, i.e. content manifestly violating the rights of the rightsholder which does not require an “independent assessment” of its lawfulness by the platform. In this regard, the Advocate General also criticises the Guidance of the European Commission on the application of the DSM Directive, where it states that, in specific cases, content-sharing platforms should preventively block content on the basis of a mere assertion by the rightsholders “of a risk of significant economic harm”, even if the copyright or related right infringement is not manifest.
The Advocate General’s opinions are not binding on the Court of Justice. In most cases, however, and as is expected in the present case, the Court of Justice will follow the advice of the Advocate General.
Please contact Karel Janssens for further information about this topic and/or for general legal advice relating to online platforms.