26 April 2022CopyrightAlex Baldwin

CJEU maintains liability of Web 2.0 service providers

The Court of Justice of the European Union (CJEU) has dismissed Poland’s attempt to annul article  17 of the Digital Single Market (DSM) Directive over freedom of expression concerns.

Article 17, which was introduced in 2019, established that providers of Web 2.0 services are liable when infringing content is illegally uploaded by their users.

Poland bought action against article 17 in May 2019, claiming that the directive conflicted with the EU Charter of Fundamental Rights and freedom of expression.

It argued that the court should annul article 17(4)(b) and article 17 (4)(c), specifically the section containing the wording “and made best efforts to prevent the future uploads”.

If the court found that the contested provisions cannot be deleted from the directive without “substantively changing the rules” of the article, Poland said that the CJEU should annul the entirety of article 17.

In a press release published today, the CJEU announced that it had dismissed Poland’s action.

The court said that online content-sharing service providers are de facto required to carry out a prior review of the content that users wish to upload on their platforms, provided that those service providers have received relevant information from rightsholders.

It held that the websites require the use of automatic recognition and filtering tools to conduct prior reviews and filtering for potentially infringing content.

The court agreed that the directive “entails a limitation” on the right to freedom of expression and information of users of the websites. As a justification for this limitation, the court found that the EU legislator “laid down a clear and precise limit” on blocking lawful content when uploading.

However, the court also reinforced that member states must strike a “fair balance” between the rights given to IP owners, and other provisions under the charter of fundamental rights.

“The court infers from the foregoing that the obligation, on online content-sharing service providers, to review, prior to its dissemination to the public, the content that users wish to upload to their platforms, resulting from the specific liability regime established in the directive, has been accompanied by appropriate safeguards by the EU legislature in order to ensure respect for the right to freedom of expression and information of the users of those services, and a fair balance between that right, on the one hand, and the right to intellectual property, on the other,” said the court.

Copyright expert Eleonora Rosati gave her initial take on the ruling on

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