THE ECJ FINDS ARTICLE 17 OF THE DSM DIRECTIVE CONCERNING THE LIABILITY REGIME FOR ONLINE CONTENT-SHARING SERVICE PROVIDERS VALID!

On 26 April 2022, the European Court of Justice (“ECJ”) dismissed Poland’s action seeking the annulment of (certain provisions of) Article 17 of the Digital Single Market Directive, in particular relating to the new liability regime for online content-sharing service providers. Poland’s action gave the ECJ the opportunity to interpret the DSM Directive for the first time.

On 26 April 2022, the European Court of Justice (“ECJ”) dismissed Poland’s action seeking the annulment of (certain provisions of) Article 17 of the Digital Single Market Directive, in particular relating to the new liability regime for online content-sharing service providers. Poland’s action gave the ECJ the opportunity to interpret the DSM Directive for the first time.

Article 17 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (the “DSM Directive”), amends previous Directives 96/9/EC and 2001/29/EC and lays down the principle that online content-sharing service providers are directly liable where works and other protected subject matter are unlawfully uploaded by users of their services. This said, providers may be exempted from that liability if they, inter alia, actively monitor the content uploaded by users in order to prevent the placing online of protected subject matter that rightholders do not wish to make available.

On 24 May 2019, Poland brought an action to annul this new liability regime alleging that it limited the exercise of the right to freedom of expression and information. Poland argued that such regime requires online content-sharing service providers to carry out preventive monitoring by means of IT tools for automatic filtering of all content that users upload, without providing safeguards to ensure that the right to freedom of expression and information is respected.

The ECJ dismissed Poland’s action on 26 April 2022, holding that the obligation of the providers to carry out a prior automatic review of the content uploaded by users, is accompanied by appropriate safeguards in order to ensure respect for the right to freedom of expression and information of those users as well as a fair balance between that right and the right to intellectual property. We mention, amongst others, the reference made by the ECJ to the clear and precise limit that exclude, in particular, measures which filter and block lawful content when uploading. Another example of such ‘appropriate safeguards’ referred to by the ECJ, are the procedural safeguards introduced by the DSM Directive, in particular the possibility for users to submit a complaint when they believe that access to uploaded content has been wrongly disabled, as well as the access to efficient judicial remedies and out-of-court redress mechanisms. And finally, Member States are required to ensure that users are authorized to upload and make available content generated by themselves for the specific purposes of quotation, criticism, review, caricature, parody or pastiche. For the other appropriate safeguards taken into account by the ECJ we refer to the judgment itself.

The ECJ furthermore also cautioned the Member States that, when transposing Article 17, they must implement it in such a way as to strike a fair balance between the various fundamental rights protected by the Charter. In addition, “the authorities and courts of the Member States must not only interpret their national law in a manner consistent with that article but also make sure that they do not act on the basis of an interpretation of the article which would be in conflict with those fundamental rights or with the other general principles of EU law, such as the principle of proportionality”.

It can thus be said that although upheld, the validity of Article 17 is subject to the strict application of safeguards to ensure respect for the right to freedom of expression and information.

CAPE IP Law

3 May 2022


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