Latest Developments in Controversial Article 17 on Platform Liability for Infringing Content

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Latham & Watkins LLPA year on from the national implementation deadline of the Directive on copyright in the Digital Single Market, the CJEU has upheld controversial Article 17.

In September 2016, the European Commission announced its proposal on “the modernisation of copyright” designed to bring “clearer rules for all online players”. Six years later, in September 2022, and following a national transposition deadline of 7 June 2021, the EU Directive on copyright and related rights in the Digital Single Market 2019/790 (the Directive) is not yet fully implemented across all EU Member States.

Poland is one of the Member States that have not, or have not fully, implemented the Directive. In 2020, the Polish government brought an action to annul Article 17 of the Directive, arguing that it would infringe freedom of expression. After more than two years of controversy and discussion around Article 17, on 26 April 2022, the Court of Justice of the European Union (CJEU) delivered its judgement on Poland’s action. The CJEU upheld Article 17, finding that it is valid and compatible with fundamental rights. The judgement broadly follows the Advocate General’s opinion delivered on 15 July 2021.

Why Is Article 17 Controversial?

Article 17 applies to OCSSPs, defined broadly in the Directive as providers of platforms that allow users to upload and share content protected by copyright and other intellectual property rights. Under Article 17, OCSSPs are liable for infringing content that users upload to their platforms, subject to a set of liability exemptions. To avoid liability for infringing content, OCSSPs must:

  • make “best efforts” to obtain authorisation from the rightholder to make the content available; and
  • make best efforts to block unauthorised content; and
  • act expeditiously following notification from a rightholder to block or remove unauthorised content, and make best efforts to prevent future upload of that content (i.e., notice-and-take-down and notice-and-stay-down mechanisms).

As recognised by the CJEU, in practice the liability exemptions under Article 17 effectively require OCSSPs to review content before it is uploaded (though Article 17 explicitly denies a general monitoring obligation on platforms). The CJEU also acknowledged that, at least for large-scale platforms, such prior review of content is likely to require the use of automated upload filters (software that uses algorithms to identify and filter content). Critics of Article 17 argue that reliance on upload filters could lead to excessive blocking of content (as legitimate content also risks being blocked in practice) and restricts the freedom of expression of platform users.

Poland’s Challenge

Poland challenged Article 17 on the grounds that its effective requirement on OCSSPs to filter content infringes on the right to freedom of expression (which is protected under the EU Charter of Fundamental Rights), and that such infringement is not proportionate to the objective of Article 17 in protecting the intellectual property rights of rightholders. Poland argued that, as a disproportionate infringement on a fundamental right, Article 17 should be annulled.

The CJEU’s Judgement

The CJEU acknowledged that the liability exemption framework under Article 17 creates an obligation on OCSSPs to review and filter content prior to upload, and therefore Article 17 operates as a restriction on the right to freedom of expression of platform users. However, the CJEU found that Article 17 contains sufficient safeguards to protect freedom of expression and should be upheld as a necessary and proportionate protection for intellectual property rights. The CJEU noted a number of limitations and safeguards built into Article 17 to ensure proportionality, including the following:

  • Only content filtering systems that can distinguish between lawful and unlawful content can be used in compliance with Article 17, and therefore no legal content should be blocked.
  • Member States have to provide in national law for existing exceptions to copyright protection, to allow users to lawfully upload content generated by themselves for the purposes of quotation, criticism, review, caricature, parody, or pastiche.
  • The liability exemption requires rightholders to provide OCSSPs with “relevant and necessary information” or a “sufficiently substantiated notification”, as a precondition to the OCSSP blocking relevant content.
  • The Directive specifies that Article 17 must not lead to a general monitoring obligation, meaning that OCSSPs cannot be required to monitor content and make their own assessments of the content in order to determine its lawfulness. The Advocate General also emphasised this safeguard, stressing that the legislation cannot turn OCSSPs into judges of online legality, responsible for deciding on copyright issues.
  • The CJEU emphasised the various procedural safeguards in Article 17 that protect the right to freedom of expression, such as the requirement for OCSSPs to provide an effective and expeditious complaint and redress mechanism for users to dispute decisions to block their content.

Next Steps

The CJEU ultimately concluded that Article 17 achieves a proportionate and fair balance between users’ rights to freedom of expression and the protection of rightholders’ intellectual property. However, the CJEU cautioned Member States to ensure that their national implementation of Article 17 maintains its safeguards for freedom of expression in practice and does not undermine this inherent balance of rights. In practice, the CJEU arguably requires Member States to further specify the parameters of the content review and filtering requirements imposed on OCSSPs, in order to maintain a proportionate approach, for example in their national implementing legislation or in secondary legislation. Only 56% of Member States have implemented the Directive, with at least some Member States believed to be waiting for the CJEU’s judgement in this case before finalising their transposition of Article 17. More Member States are now likely to go forward with their implementation. Those that have already transposed Article 17 may see fit to update their national laws or draft secondary legislation to account for the CJEU’s expectations of the legal and procedural safeguards required to protect freedom of expression.

Despite the clear decision from the CJEU to uphold Article 17, OCSSPs, rightholders, and platform users may need to wait for further legislation and guidance from Member States to understand the practical parameters for sharing, protecting, and filtering content online.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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