CJEU judgment C-401/19 protection of authors versus freedom and privacy on the Internet

On May 17, 2022, the text of Dr. Mirosław Gumularz regarding the judgment of the CJEU C-401/19 was published in Rzeczpospolita newspaper. The link to the text is here. We invite you to read selected fragments of the article.

The context of the case

On April 26, 2022, the CJEU (Grand Chamber) issued a judgment in a high-profile case concerning Directive (EU) 2019/790 on copyright. It is about the provisions relating to filtering / moderating content on the Internet in connection with possible infringement of copyright. The complaint in this case was lodged by the Republic of Poland. Importantly, the provisions of the directive have not yet been implemented in Poland (although the implementation deadline has passed). It does not less determine the contentious issue, which certainly influenced 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 deviates 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 that stores the content (eg a hosting provider that stores materials that may be subject to copyright protection), upon receiving credible information that they are illegal (eg “pirated” films), must immediately react (block access). Otherwise, he becomes jointly responsible for this breach. At the same time, Art. 15 of the Act on the provision of electronic services determines that there is no obligation to “actively seek” indicated illegal content (eg filtering the content of comments posted by users).

In the opinion of the Republic of Poland, service providers storing content – taking into account the construction of art. 17 of Directive 2019/790 – they 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

In the opinion of the CJEU, the obligations imposed by Art. 17 sec. 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 these services. The CJEU pointed out that the Copyright Directive and the CJEU case law 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 illegal content and lawful content, and as a result of which its implementation could lead to the blocking of lawful communication, is contrary to the right to freedom of expression and information guaranteed in art. 11 of the Charter of Fundamental Rights. The CJEU emphasized that, contrary to what the Republic of Poland maintains, the obligation imposed on providers of online content sharing services to verify the content that users want to post on their platforms before disseminating them to the public, resulting from a separate liability system established in Art. 17 sec. 4 of Directive 2019/790, has been surrounded by the EU legislator with appropriate guarantees to ensure that the right to freedom of expression and information of users of these services is respected, and a fair balance between – on the one hand – this right and – on the other hand – intellectual property right.

Conclusions

It follows from the above that the CJEU:
(-) sees a problem with the operation of automatic content filtering mechanisms;
(-) determined that the operation of such mechanisms must be controlled and must not affect, inter alia, on freedom of expression.

Importantly, the said ruling – as it seems – still does not prejudge 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 required to constantly monitor content. On the other hand, it seems to assume (agreeing with the 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.

May 17, 2022
Mirek