The Court of Justice has delivered its judgement on platform liability in case C-401/19 

April, 2022 - Henning Wahlberg

The full-text judgement in English has not yet been released, but the press release with a summary of the judgement and its result can be accessed here.


The case concerns an action brought by Poland seeking annulment of Article 17 of Directive (EU) 2019/790 on Copyright in the Digital Single Market. In short, Article 17 sets out the principle that providers of online content-sharing services (such as YouTube) are directly liable for user-uploaded content which infringes rightsholders’ copyright and related rights. However, according to Article 17 providers may be exempt from this liability if certain requirements are fulfilled, and one of the central requirements is that the provider must make best efforts to ensure unavailability and prevent future uploads of infringing content which rightholders have provided relevant and necessary information about. Poland argued that this provision in practice constitutes an obligation for providers to monitor the content uploaded by users via the use of automated filters and that the provision ultimately would lead to blocking of legal content. Consequently, Poland argued that Article 17 violates the freedom of expression and information as laid out in Article 11 in the EU Charter of Fundamental Rights.


In its judgement the CJEU has dismissed the action brought by Poland. According to the press release, the CJEU observes that the specific liability regime set out in Article 17 in respect of online content-sharing service providers, will entail a certain limitation on the exercise of the freedom of expression and information of users of those services. However, according to the CJEU the liability regime is accompanied by appropriate safeguards ensuring the right to freedom of expression and information, and thereby striking a fair balance between this right on the one hand and the right to intellectual property on the other hand. Accordingly, the court finds that Article 17 is not in violation of the EU Charter of Fundamental Rights.


Despite the fact that the EU implementation deadline for Directive (EU) 2019/790 expired on 7 June 2021, a number of countries have been awaiting clarification from the CJEU in this case before adopting the national legislative measures required to implement the directive in national law. The judgement is thus an important step towards having the directive implemented in all EU/EEA member states.


 



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