The Republic of Poland issued proceedings against the EU Parliament and Council seeking annulment of Article 17 of the Directive on the grounds that it infringes the freedom of expression and information rules in Article 11 of the Charter.

Article 17 provides that providers of online sharing services can be directly liable for copyright works uploaded illegally by users of their services unless they actively monitor the content on their sites to prevent it being made available without the rights holder’s consent. This monitoring can be done using filtering and automatic content recognition tools.

The CJEU is being asked to assess whether imposing monitoring and filtering obligations on online intermediary service providers is compatible with Article 11 of the Charter.

Advocate General Saugmandsgaard Øe has opined that Article 17 does amount to an interference with the freedom of expression of users of online sharing services, but that the interference satisfies the conditions set out in Article 52(1) of the Charter and is therefore compatible with the Charter.

The AG says that Article 17 respects the “essence” of freedom of expression and information. Because the internet is so important to freedom of expression, public authorities cannot oblige online intermediaries to monitor content shared or transmitted through their services in search of illegal or undesirable content, but the EU legislature can, as in this case, choose to impose certain monitoring obligations on certain online intermediaries in relation to specific illegal information.

Further, the AG said, Article 17 meets the objective of general interest recognised by the Union, since it is intended to ensure the effective protection of intellectual property rights.

As for the principle of proportionality, the AG explains that the EU legislature has a margin of discretion when balancing freedom of expression with respect for intellectual property rights. Therefore, the legislature had the power to change the liability regime of online sharing service providers, which originated from the E-Commerce Directive (2000/31/EC), by imposing monitoring obligations on some of them.

Nevertheless, the AG recognised that there is a significant risk in the new regime of “over-blocking”, resulting in lawful information being blocked, as online sharing service providers may, in order to reduce any risk of liability, lean towards preventing all content that might infringe copyright being uploaded, including content that is in fact making legitimate use of a protected work as a result of copyright exceptions and limitations. The use of automatic content recognition tools increases that risk, since those tools are not able to understand the context in which copyright works are reproduced. Therefore, when drafting the Directive, the EU legislature had to provide sufficient safeguards to minimise that risk.

In the AG’s opinion, Article 17 contains such safeguards:

1. Article 17(7) recognises the right of users of online sharing services to make legitimate use of copyright works, including the right to rely on the copyright exceptions and limitations; in order for that right to be effective, providers of online sharing services are not allowed to preventatively block all content that reproduces a copyright work; it is not sufficient that users have the option of pursuing a complaint for their legitimate content to be re-uploaded after it has been preventatively blocked; and
2. Article 17(5) means that Member States cannot impose a general monitoring obligation on online sharing service providers who cannot be turned into judges of online legality, responsible for coming to decisions on complex copyright issues.

Consequently, the AG said, online sharing service providers can only detect and block content that is “identical” or “equivalent” to a copyright work that has been identified by the rights holder, i.e., content that is clearly unlawful in the light of information provided by the rights holder. Further, where it is not clear, e.g., short extracts of longer works, “transformative” works, etc., where it is reasonably foreseeable that copyright exceptions and limitations might apply, the content should not be preventatively blocked. In the AG’s view, the risk of “over-blocking” is therefore minimised and rights holders will have to request the removal or blocking of such content through substantiated notifications or through the courts. (Case C-401/19 Republic of Poland v European Parliament and Council of the EU EU:C:2021:613 (Opinion of Advocate General) (15 July 2021) — to read the Opinion in full, click here).