Is the new Article 17 compatible with the EU Charter of Fundamental Rights?
Is Article 17 of the new Copyright Directive 2019/790 (DSMD) (https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN) compatible with the EU Charter of Fundamental Rights (https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&from=EN), specifically its article 11 and the principle of freedom of expression and information?
According to Poland, no. Shortly after the adoption of the new Directive, Poland lodged a complaint (C-401/19: https://curia.europa.eu/juris/document/document.jsf?text=&docid=216823&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=2395080) before the Court of Justice of the European Union (CJEU), seeking the partial or complete annulment of the provision.
A few weeks ago, Advocate General Saugmandsgaard Øe released his Opinion (https://curia.europa.eu/juris/document/document_print.jsf?docid=244201&text=&dir=&doclang=EN&part=1&occ=first&mode=req&pageIndex=0&cid=2395080).
In it, he advises the Court to rule that article 17 is compatible with the Charter and should not be annulled. Indeed, although there are monitoring obligations for online content sharing service providers (OCSSPs), these are delimited by sufficient safeguards (contained in the provision itself) so to minimize the impact of the resulting filtering activities on users’ freedom of expression and information.
The AG starts with 3 key elements:
the regime in Article 17 is a “new liability regime”.
article 17 imposes on OCSSPs obligations to monitor which “as a general rule, take the form of filtering”.
the alleged undue interference with the Charter should be assessed in light of the guidance already provided by the CJEU in earlier decisions.
The AG divided his analysis into 3 parts
the scope of Article 17;
limitation to the exercise of freedom of expression/information;
compatibility between Article 17 and Article 11 of the Charter.
Scope of the provision
The AG concluded that OCSSPs are under an obligation to engage in preventative monitoring, in accordance with what may be expected from a diligent operator and in compliance with the principle of proportionality.
Filtering can be achieved in different ways. And although the Directive is silent as to the tool or technology to be used, the AG agreed that automatic content recognition (ACR) tools will be most commonly used.
Interference with freedom of expression/information
The AG considered that Article 17 does, indeed, interfere with freedom of expression/information. Such interference is attributable to the EU legislature.
He noted that Article 11 of the Charter corresponds – in both meaning and scope – to Article 10 ECHR. It follows that the EU provision must be interpreted in light of the case law of the European Court of Human Rights (ECtHR).
The rights depicted in Article 10 ECHR (Article 11 of the Charter) are not absolute: limitations on its exercise are permissible insofar as, in accordance with Article 52 of the Charter:
they are provided for by law,
respect the essence of the right in Article 11,
are in accordance with the principle of proportionality, as is also required under Article 17(5).
According to the AG, Article 17 complies with all requirements above.
Safeguards and user rights
The AG also considered that Article 17 contains “meaningful safeguards to protect the users of sharing services against measures involving the improper or arbitrary blocking of their content.” Indeed, the EU legislature “expressly recognised that users of sharing services have subjective rights under copyright law. Those users now have the right, which is enforceable against the providers of those services and rightholders, to make legitimate use, on those services, of protected subject matter, including the right to rely on exceptions and limitations to copyright and related rights.”
In addition, the limit of permissible filtering and blocking measures is clearly defined: they must not have the objective or the effect of preventing legitimate uses. The provisions of article 17 help counteract the tendency of those providers to be ‘overzealous’ and limit their action to oversee the dissemination of content which infringes copyright rules.
Ex ante/ex post blocking
The AG also pondered on whether the filtering and blocking obligation is ex ante or ex post. Here, the AG agreed with the Parliament, Council and Commission that this is an ex ante obligation for OCSSPs. Hence, complaint and redress mechanisms under Article 17(9) are seen as additional and final safeguards for cases where providers mistakenly block legitimate content.
In order to minimize the risk of overblocking, an OCSSP “should only be required to filter and block information which has first been established by a court as being illegal or, otherwise, information the unlawfulness of which is obvious from the outset, that is to say, it is manifest, without, inter alia, the need for contextualisation.”
Remember that the CJEU is not obliged to follow the AG’s opinion. The final decision of the CJEU will be paramount to shed some light on the article and the interpretation of key concepts, as well as to provide a better understanding of how to implement and articulate this provision at national level.
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