EU Court of Justice: Article 17 is compatible with EU's freedom of expression

By Emmanuel Legrand

In a carefully worded opinion, the European Union Court of Justice's Advocate General Henrik Saugmandsgaard Øe has found that Article 17 of the European Copyright Directive on copyright and related rights in the Digital Single Market is not incompatible with the European Union’s Charter of Fundamental Rights.

  Article 17 establishes the principle that providers of online sharing services are directly liable when protected subject matter (works, etc.) is illegally uploaded by users of their services. However, the providers concerned may be exempt from that liability if DSPs make "best efforts" to identify rights holders and license content, or remove infringing content.

  The opinion is a response to a legal case launched on 24 May 2019 by the Republic of Poland against the European Parliament and Council of the European Union. Poland questioned the compatibility of Article 17 with the EU’s Charter, claiming that if infringed the right to freedom of expression and information guaranteed by Article 11 of the Charter.

Poland's legal case dismissed

  The action from Poland is therefore dismissed. The opinion, although non-binding but likely to be confirmed by the EUCJ, lifts a major challenge for the implementation of the Directive as it will allow members states to go on with the transposition of the Directive with greater certainty about the scope of Article 17. 

  "While Article 17 entails an interference with freedom of expression, that interference satisfies the conditions laid down in the Charter of Fundamental Rights," wrote Øe. The Advocate General observed, moreover, that Article 17 of Directive 2019/790 "meets an objective of general interest recognised by the Union, since it is intended to ensure effective protection of intellectual property rights," according to the EUCJ.

  Poland was seeking purely and simply the annulment of Article 17(4)(b) and Article 17(4)(c), in particular the part containing the following wording: "and made best efforts to prevent their future uploads in accordance with point (b)" of the Directive. In its filingwith the Court of Justice of the European Union, Poland asked that Article 17 be annulled "in its entirety" if the Court found that "the contested provisions cannot be deleted from Article 17 of Directive (EU) 2019/790 without substantively changing the rules contained in the remaining provisions of that article."

Sufficient safeguards

  Poland claimed that the imposition on online content-sharing service providers of the obligation to make best efforts made it "necessary for service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary."

  Øe wrote, "The EU legislature may, while observing freedom of expression, impose certain monitoring and filtering obligations on certain online intermediaries, provided, however, that those obligations are circumscribed by sufficient safeguards to minimise the impact of such filtering on that freedom. Since Article 17 of Directive 2019/790 contains, in my view, such safeguards, I shall propose that the Court should rule that that provision is valid and, consequently, that it should dismiss the action brought by the Republic of Poland."

  The AG's opinion also tackles the use of filtering measures to ensure that unlicensed content is identified and removes. He admits that "filtering raises complex questions, put forward by the applicant, with regard to the freedom of expression and information of users of sharing services, guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’)." 

Taking into account users

  However, he leaves it to the Court "to determine whether, and as the case may be the circumstances in which, such filtering is compatible with that freedom."

  He wrote: "It will have to take account of the advantages, but also the risks of such filtering and, in that connection, ensure that a ‘fair balance’ is maintained between, on the one hand, the interest of right holders in the effective protection of their intellectual property and, on the other, the interest of those users, and the general public, in the free flow of information online."

  The AG also suggested that the filtering of content should not be done without safeguards. "In view of the risks of ‘over-blocking’ described in the subsection above, a liability regime such as that resulting from the contested provisions must, in my view, be accompanied by sufficient safeguards to minimise those risks and, therefore, ensure that the extent of the interference with freedom of expression is precisely circumscribed," wrote the AG.

A balance between rights and interests

  He added: "Generally speaking, any kind of delegation, by public authorities, of the review of online legality to intermediary providers, in the form of monitoring obligations which are imposed directly or indirectly on those intermediaries, must be accompanied by such safeguards. More specifically, I consider that such a regime must form part of a legal framework laying down clear and precise rules governing the scope and application of the filtering measures to be implemented by the service providers concerned, so as to ensure that the users of those services have effective protection against the improper or arbitrary blocking of information they wish to upload."

  For Eleonora Rosati, director of the Institute for Intellectual Property and Market Law (IFIM) at Stockholm University, the "substantive conclusion that Article 17 is – indeed – compatible with the Charter is not at all surprising." 

  She wrote in her blog that Øe acknowledged that it is for EU legislature "to create new balance between different rights and interests." 

A disastrous article 17

  The Electronic Frontier Foundation found that the AG "missed an opportunity to fully protect internet users from censorship by automated filtering, finding that the disastrous Article 17 of the EU Copyright Directive doesn’t run afoul of Europeans’ free expression rights."

  The EFF objected to the filtering required by Article 17, which would have the effect of preventing people "to freely speak and share opinions, criticisms, photos, videos, or art if they are subjected to a black box programmed by algorithms to make potentially harmful automated takedown decisions."

  EFF wrote that while the AG’s approach "reduces the risk of overblocking, it unfortunately permits mandated upload filters in principle," and "fails to acknowledge the limits of technical solutions and could, in practical terms, make error-prone copyright matching tools, such as those used by YouTube, a legal standard."

A welcomed opinion

  Organisations representing rights holders welcomed the opinion with relief, since a negative opinion could have compromised the scope of Article 17. 

  Helen Smith, Executive Chair of Brussels-based organisation IMPALA, representing independent music companies, said: "We welcome the opinion that the European court should rule that Article 17 is compatible with freedom of expression and should not be annulled. As for the detail, we don’t agree with some of the conclusions but as it’s the court’s view that counts, we will wait for the ruling to come out to comment on detail."

  The case is now going back to the Court of Justice, which is likely to use the conclusions of the AG's opinion to make the final determination.