On Thursday 15 July, the Advocate General, Henrik Saugmandsgaard, ruled that Article 17 of Directive 2019/790 on copyright reform (see EUROPE 12257/24) is compatible with freedom of expression and information, and proposed that the Court of Justice of the European Union (CJEU) reject the appeal lodged by Poland (Case C-401/19).
Poland, which opposed the adoption of the Directive by the Council of the EU (see EUROPE 12236/4), filed an appeal in 2019 for the annulment of Article 17 of the Directive on the grounds that it would violate the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (see EUROPE 12261/8).
Article 17 establishes the principle that online sharing service providers are directly liable when protected material is illegally uploaded by users of their services.
However, the Directive states that the providers concerned may be exempted from this liability under certain conditions. In particular, they are obliged to actively monitor the content uploaded by users in order to prevent the posting of protected material that copyright owners do not wish to make available on these services. This preventive monitoring must, in many cases, take the form of filtering using automatic content recognition tools.
In his conclusions, the Advocate General finds that this article does entail an interference with the freedom of expression of users of online sharing services, but that it meets the conditions of Article 52 Para 1 of the EU Charter of Fundamental Rights.
In particular, he considers that the contested provisions respect the “essential content” of freedom of expression and information, and that the European legislator may choose to impose certain monitoring obligations regarding specific illegal information on certain online intermediaries.
The Advocate General also notes that Article 17 meets a general interest objective recognised by the EU, since it aims to ensure effective protection of intellectual property rights.
With regard to compliance with the principle of proportionality, he explains inter alia that the European legislator has a margin of appreciation to reconcile freedom of expression with respect for the intellectual property rights of owners.
In his view, sufficient safeguards have been provided for in the Directive to minimise the risk of “over-blocking”, as service providers are not allowed to preventively block all content which reproduces protected subject matter identified by copyright owners.
Furthermore, he states that copyright owners must request the removal and blocking of the content in question by means of reasoned notifications, or even refer the matter to a judge, so that the latter can rule on the legality of the content and, if it is illegal, order its removal and blocking.
See the conclusions: https://bit.ly/3kl5jLb (Original version in French by Marion Fontana)