What happens next with upload filters in the EU after the CJEU copyright ruling
On 26 April, the Court of Justice of the European Union delivered its judgement on one of the most relevant cases for freedom of expression in recent years: Case C-401/19- Poland v Parliament and Council. The case was brought by Poland after the adoption of the controversial copyright Directive, and specifically because of its Article 17 that, according to EDRi and other civil society organisations, academics and politicians, could lead to mandatory use of upload filters on most online platforms.
Save Your Internet.eu: How did we get here?
The copyright Directive proposal posed a serious threat to freedom of expression, access to culture and innovation and therefore it was a priority dossier for EDRi since its publication in September 2016. The goal of the Directive was, as stated by the European Commission, to modernise the copyright framework in the EU, and to provide more bargaining power to rightsholders against online platforms. The adopted text leaves platforms who must comply with it no other option than the use of upload filters.1
The proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (or “the Copyright Directive”) was first published in 2016 after years of public consultations (see here and here). The copyright directive was received with criticism from big tech and digital rights groups alike, although for different reasons. For digital rights groups the proposal created a precedent to circumvent the prohibition of general monitoring obligations of the e-Commerce Directive. For both big tech and smaller platforms, the direct liability and the obligation to negotiate on fair terms with rightsholders would limit their dominance when negotiating compensation to rightsholders.
On 26 March 2019 the European Parliament (EP) adopted the new copyright Directive. The music industry and collecting societies celebrated it as a victory for authors and creators, despite the fact that actual authors (along with civil society groups) were worried about the outcome: fairpaynotfilters.eu.
CJEU: Poland vs upload filters
Right after the adoption of the Directive, Poland brought a case before the CJEU asking for the invalidation of Article 17 coercing the platforms into the use of upload filters and therefore considered as a threat to freedom of expression.
On 26 April 2022 the CJEU delivered its judgement. Following the AG Opinion, the Court did not consider that Article 17 was in violation of the Charter of Fundamental Rights since in the Court’s opinion there are sufficient safeguards allowing the exercise of freedom of expression.),The Court establishes that “the contested filtering provisions in Article 17(4) are mere “obligations of best effort” while the obligation not to prevent the availability of lawful uploads is an “obligation of result”. This means that while the platforms must in any case ensure that what is lawful stays available, in their efforts to ensure compliance the platforms can resort to a range of measures where content filtering is the most extreme recourse and can only be used when filters do not exclude legal content. Former MEP Felix Reda, who currently works for EDRi member Gesellschaft für Freiheitsrechte / Society for Civil Rights ( GFF), arrived to similar conclusions. Questions about whether upload filters can be implemented in the ideal way prescribed by the Court were raised by professor expert Martin Husovec.
However, the Court also clearly limited the use of upload filters to cases where the content is clearly infringing copyright uses, or otherwise the platform would be engaging in the prohibited general monitoring obligations. …
Even if the judgement did not completely rule out the use of upload filters, para 86 of the judgement reminds that “filtering system which might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications …would be incompatible with the right to freedom of expression and information, guaranteed in Article 11 of the Charter, and would not respect the fair balance between that right and the right to intellectual property.” So it seems that the leverage for any complaints on oveblocking of lawful content lies in proving that the malfunctioning of upload filters is due to their inability to make adequate distinctions. If the burden of proving this is the case falls on the user who considers their content undjusty blocked it may be a tricky position. These technologies are protected by trade secrets and it will be difficult to adequately assess their abilities without a proper insight into their inner workings.
Member States, did you listen?
According to Felix Reda, only the Austrian and German implementations would be in line with the CJEU ruling and Italy and Spain would need to amend their implementing laws. Will there be enough political support for the change? And what will happen in those Member States who still need to decide on the implementation? EDRi members will be deciding soon about the next steps in the fight against upload filters, including litigation strategies. Stay tuned!
1 Advocate General Opinion, Case C-401/19 : “I find it difficult to see by what means other than the use of an automatic recognition tool enabling them to filter the content uploaded to their services those providers would reasonably be able to ‘ensure the unavailability’ of protected works and subject matter identified by rightholders”