Content-sharing services. The balance between copyright and freedom of expression – new EU ruling

by David S. Brambani and Mats Hole


iPhone, AirPods and computer keyboard.
Providers of online content-sharing services shall in principle be liable for content uploaded by their users if such content infringes third parties' copyright or related rights, cf. the DSM directive. After Poland lodged its action requesting that Article 17 should be annulled, the Court of Justice of the European Union (CJEU) found Article 17 valid. The CJEU found that Article 17 provides appropriate safeguards to protect freedom of expression. The judgment gives important guidance on the application of the new liability regime in practise.

The Copyright Digital Single Market Directive (DSM) has been highly debated. The centre for the discussion has been the balance between copyright and freedom of expression. In essence, an overly strict regulation of users' dissemination via various platforms may amount to a disproportionate intrusion into the freedom of expression and an overly liberal regulation interferes with the copyright-holders' rights.

On 24 May 2019, the Republic of Poland brought an action (C-401/19) requesting the annulment of Article 17 due to an alleged conflict with the right of expression and information in the EU Charter of Fundamental Rights. After nearly three years of waiting, the CJEU's judgement finally arrived in late April.

The judgment confirms that Article 17 represents a major shift in the liability framework for hosting platforms. Previously, platform providers could rely on the E-Commerce Directive's Safe Harbour principle. Thus, they could avoid liability for user uploaded content, provided they had no positive knowledge of illegal activity or information stored on the platform. Pursuant to the new Article 17, the service providers are now in principle considered directly responsible for the communication of the content they host, even in the absence of positive knowledge of infringement/illegal activity on their platform.

Certain exemptions apply. A main criterion for exemption is that the content-sharing service provider must make "best efforts" to ensure the unavailability and prevent future uploads of specific works and other subject matter for which a rightsholder has provided the service provider with the relevant and necessary information.

The "best efforts" requirement that the service providers must comply with has been the centre of attention in discussions about Article 17 over the previous years. This was also the topic at hand when the CJEU delivered the C-401/19 judgement.

In C-401/19 it was the preventative filtering/blocking of content that was to be ruled on. The Republic of Poland argued that the wording of Article 17 makes it necessary for the platform providers – to avoid liability – to carry out automatic filtering of content uploaded by users. It was argued that such filtering, or preventative control mechanisms, would undermine the essence of the right to freedom of expression and information. The CJEU did not agree.

A few key takeaways from the judgment:

What the future holds regarding the use of upload filters, and the quality of such filters, will be interesting to see. In any case, the judgement C-401/19 will definitely be referenced when it comes to assessing the national implementations of the DSM Directive and in coming cases before national courts when the national laws are to be used for solving disputes. 

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