Copyright and upload filters have been on the table for three years now. During this time, civil rights defenders fought to avoid the use of mandatory upload filters being used to prevent possible copyright infringement. The Directive on copyright and related rights in the Digital Single Market was adopted in 2020 and member states of the European Union have started to harmonise their copyright law. Poland turned to the Court of Justice of the European Union (CJEU) calling for the annulment of Article 17 fully or partly because of free speech reasons. Article 17 regulates the use of upload filters in the Copyright Directive. On 15 July, the Advocate General (AG) of the CJEU, Henrik Saugmandsgaard Øe, delivered his opinion on the case Poland brought against Article 17.
Article 17 states that platforms like YouTube or Facebook are directly liable when copyright-protected content, such as videos of Billie Eilish or the new Marvel movie, are illegally uploaded by users. The result is that platforms not only delete content, but try to prevent it from appearing on their sites in the first place. To achieve this, they use software that automatically filters out problematic content. On YouTube alone, 500 hours of videos are uploaded every minute, and it is impossible for humans to review that much content. Therefore, using tools like upload filters that recognise content automatically is almost unavoidable.
The Opinion of the Advocate General
The Advocate General (AG) published his opinion on the case to help inform the Court as it considers its own opinion. The AG's opinion held that Article 17 ensures a fair balance between the interests of the copyright owners and the protection of free speech. Article 17(7) covers review, criticism, or caricature and states that users need to be able to rely on these exceptions. Service providers need to make “best efforts” to prevent the upload of copyright-protected work, but this cannot result in the preventive blocking of legitimate uses of it. Another important safeguard, according to the AG, is that Article 17(8) states that there shall not be a general monitoring obligation.
The Advocate General agrees with Poland that Article 17 entails an interference with the free speech of users of sharing services. The upload filters are a preventive measure to monitor users’ information and put prior restraint on the freedom of speech. However, an argument used by supporters of Article 17 is that platforms are private business entities, and they can decide what kind of information and content they want to see on their website.
The AG does not agree with this argument and states that the argument of self-regulation does not apply in this particular case. The upload filters are used by platforms in order to comply with EU legislation, not because they do not wish to see certain content on their website. This means that the interference with free speech is a result of the legislation.
According to the case law of the CJEU, limitations on fundamental rights can be justified if they are prescribed by law, respect the essence of those rights and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. They must also meet certain criteria, namely “accessibility” and “foreseeability”. This means that the provision needs to be written in a way that a person is able to understand what it means and what the potential consequences are. The AG says that Article 17 meets both of these standards. He also states that “foreseeability” means that safeguards need to be in place that protect against abusive and arbitrary interference.
The AG also acknowledges that because Article 17 links the liability of platforms and the effectiveness of filtering content, it poses a risk to free speech, as it can result in blocking more uploads than necessary. This “over-blocking” can happen because platforms try to avoid any liability and rather block too much than too little. Especially in situations where it is not entirely clear if there is a copyright infringement, for example because the original content has been transformed, such as memes, it would be easier to block the upload instead of double-checking if EU legislation allows for an exception.To avoid, or at least reduce, this risk, the AG states that sufficient safeguards need to be in place. He says that it is the EU’s responsibility to put a legal framework in place that outlines rules for what filtering measures are allowed to do.
While the AG agrees that the contested article does in fact pose limitations to the exercise of free speech, he also is of the opinion that Article 17 does entail sufficient safeguards to limit the scope of these limitations. On the other hand, he gives a detailed description for the use of upload filters. His reasoning will be used in further legislative measures, such as for the Digital Services Act and the Media Freedom Act. He dismisses the action brought by the Republic of Poland.
The opinion of the Advocate General is not binding on the CJEU. In a next step, the Court will begin deliberations in this case and give judgement on a later date.
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