Article 17 of the 2019 Directive establishes the principle that providers of online content-sharing services are, subject to certain exemptions, directly liable when protected subject matter is illegally uploaded by users of their services. Under Article 17, content-sharing service providers are required actively to monitor content uploaded by users to prevent copyright protected works from being uploaded to their services.

Poland issued proceedings seeking to annul Article 17 on the basis that it infringes the fundamental right of freedom of expression and information under the Charter of Fundamental Rights of the EU.

The CJEU observed that in order to benefit from an exemption to liability under Article 17, online content-sharing service providers are required to have carried out a review of the content that users wish to upload to their platforms if those service providers have received the relevant and necessary information from the rights holders concerned. Further, in order to be able to carry out such a review, 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. In the CJEU’s view, having to carry out a review and use filtering tools is liable to restrict an important means of disseminating online content. Therefore, the liability regime for online content-sharing service providers under the Directive entails a limitation on the exercise of the right to freedom of expression and information of users of those content-sharing services.

As for whether such a limitation is justified and proportionate to the legitimate objective of Article 17, which is to protect intellectual property rights, the CJEU found that the EU legislature had provided for a clear and precise limit on the measures that may be taken or required in implementing the obligations of Article 17, precisely in order to guard against the risk to freedom of expression and information of users, by excluding measures that filter and block lawful content when uploading. Therefore, a filtering system that might not distinguish adequately between unlawful and lawful content, which could lead to lawful content being blocked, would be incompatible with the right to freedom of expression and receipt of information and would not respect the balance between that right and the right to intellectual property.

Further, Article 17 provides that users of online content-sharing services must be allowed, under national law, to upload user-generated content for certain purposes, e.g., parody or pastiche, and that service providers should state that they can use copyright works and other protected subject matter under the exceptions or limitations to copyright and related rights provided for in EU law.

In addition, under Article 17 the liability of online content-sharing service providers to ensure that certain content is unavailable is only incurred if the rights holders in question have already supplied the service providers with the relevant and necessary information on that content.

Moreover, Article 17 states that its application must not lead to any general monitoring obligation. Therefore, the providers of online content-sharing services are not required to prevent the uploading and making available to the public of content which, in order to be found unlawful, would require an independent assessment of the content by them in the light of the information provided by rights holders and of any exceptions and limitations to copyright.

The CJEU also noted that Article 17 contains various procedural safeguards, which protect the right to freedom of expression and information of service users where providers erroneously or unjustifiably block lawful content.

Accordingly, the CJEU inferred that the obligation on online content-sharing service providers to review user-generated content before it is disseminated to the public is accompanied by appropriate safeguards to ensure respect for the right to freedom of expression and information and to achieve a fair balance between that right and the right to intellectual property. Nevertheless, the CJEU said, Member States must, when transposing Article 17 into national law, take care to interpret it so that a balance is struck between the various fundamental rights protected by the Charter. (Case C-401/19 Republic of Poland v European Parliament and Council of the EU, EU:C:2022:297 (26 April 2022) — to read the judgment in full, click here).