Author: Paul Keller

On Tuesday, November 10, the Court of Justice of the European Union heard case C-401/19. This case is a request by the Polish government to annul the filtering obligation contained in Article 17 of the DSM directive on the grounds that it will lead to censorship and will limit the freedom of expression and the freedom to receive and impart information guaranteed in the EU charter of fundamental rights.

The defendants in this case are the European Parliament and the Council of the European Union. In addition the European Commission and the governments of France and Spain intervened in the case on the side of the defendants.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users. 

On the face of it the case is about Poland’s request to annul Articles 17(4)b and c of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Articles 17(4)b and c effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms. 

According to Poland the key problem with the directive is the move away from active participation of rightholders (in the form of Notice and Takedown) and handing the problem of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they are limiting user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information. Consequently, the offending parts of Article 17 should be annulled by the court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights, but they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve.