On 17 May 2022, Rzeczpospolita published a text by Dr. Mirosław Gumularz on the CJEU judgment
C-401/19.

Link to the text here.

We’d like to invite you to familiarize yourself with selected fragments of the article:

The context

On 26 April 2022, the CJEU (Grand Chamber) issued a judgment in a high-profile case regarding Directive (EU) 2019/790 on copyright. These are provisions relating to the filtering / moderation of content on the Internet in connection with a possible infringement of copyright law. The Republic of Poland lodged a complaint in this case. Importantly, the provisions of the said directive have not yet been implemented in Poland (although the deadline for implementation has passed). Nevertheless, it settles the contentious issue, which certainly affected the pace of legislative work.

Poland’s complaint concerned Art. 17 of Directive 2019/790. In the greatest simplification, it can be said that the indicated regulation largely departs from the currently known notice and takedown mechanism, which in Polish legislation is expressed in Art. 14 of the Act on the provision of electronic services. According to it, the entity storing content (e.g. a hosting provider storing materials that may be subject to copyright protection) must immediately react (block access) upon receiving reliable information that they are unlawful (e.g. “pirated” films). Otherwise, it will become jointly responsible for this violation. At the same time, Art. 15 of the Act on the provision of electronic services determines that there is no obligation to “actively search” for the indicated unlawful content (e.g. filtering the content of comments posted by users).

According to the Republic of Poland, service providers storing content – taking into account the construction of Art. 17 of Directive 2019/790 – would in practice have to verify all content posted by users before disseminating it to the public. For this purpose, these providers, in the absence of other practical solutions, would have to use automatic filtering tools using algorithms, which raises, for example, the risk of unjustified blocking of lawful content.

Judgment of the CJEU

According to the CJEU, the obligations imposed by Art. 17.4 of Directive 2019/790 on providers of online content-sharing services do not disproportionately restrict the right to freedom of expression and information of users of those services. The CJEU pointed out that the Copyright Directive as well as the case law of the CJEU contain criteria that will enable the protection of freedom of expression. The CJEU points out that a filtering system that might not sufficiently distinguish between unlawful and lawful content, with the result that its implementation could lead to the blocking of lawful communications, is contrary to the right to freedom of expression and information guaranteed by the Art. 11 of the Charter of Fundamental Rights. The CJEU emphasized that, contrary to what the Republic of Poland maintains, the obligation imposed on online content-sharing service providers to verify the content that users wish to post on their platforms before disseminating it to the public, resulting from a separate liability regime established in Art. 17.4 of Directive 2019/790, has been surrounded by the EU legislator with appropriate guarantees to ensure respect for the right to freedom of expression and information of users of these services, and a fair balance between, on the one hand, this right and, on the other hand, the right to intellectual property.

Conclusions

It follows from the above that the CJEU:

• recognizes the problem of operation of automatic content filtering mechanisms;
• decided that the operation of such mechanisms must be subject to control and must not affect, inter alia, to freedom of expression.

Significantly, the said judgment – as it seems – still does not determine when service providers will in practice have to use automatic filtering systems (ex ante content) to demonstrate due diligence in the context of preventing copyright infringement. On the one hand, the CJEU emphasizes that platforms are not obliged to constantly monitor content. On the other hand, it seems to assume (according to Polish arguments) that preventing infringements in practice will require automatic content filtering. It should be assumed that the practice of applying the indicated requirements will go in this direction.

15th June 2023

Mirek

Picture used in the header was created by DALL-E.