Deeplinks
The Court of Justice of the European Union has issued a long-awaited judgment on the compatibility of the EU Copyright Directive’s filtering requirements with the Charter of Fundamental Rights of the European Union. The ruling recognizes the tension between copyright filters and the right to freedom of expression, but falls short of banning upload filters altogether.
Under Article 17 of the EU’s controversial Copyright Directive, large tech companies must ensure that infringing content is not available on their platforms or they could be held liable for it. Given that legal risk, platforms will inevitably rely on error-prone upload filters that undermine lawful online speech – as Poland pointed out in the legal challenge that led to the judgment.
No Alternatives to Filtering Tools, But Strong User Safeguards
The Court acknowledged that Article 17’s obligation to review content constitutes a de facto requirement to use automatic recognition and filtering tools, and held that such mechanisms would indeed constitute an interference with users’ freedom of expression rights. However, as with last year’s opinion of the Court of Justice’s Advocate General, the judges concluded that the safeguards provided by Article 17 were adequate. Because those safeguards include an obligation to ensure the availability of lawful uploads, an automated system that cannot “distinguish adequately between unlawful content and lawful content” won’t pass muster under EU law.
The Court also highlighted the responsibility of rightsholders to provide platforms with “undoubtedly relevant and necessary information” of an unlawful use of copyrighted material. Platform providers cannot be forced to “generally monitor” user content to check the legality of content; that also means that they cannot be require
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