Digital Law Up(to)date: Art. 17 of directive 2019/790 is valid

According to the Court of Justice of European Union (CJEU), article 17 of directive 2019/790 on copyright and related rights in the Digital Single Market (DSM directive) is valid with regard to freedom of expression (CJEU, 26 April 2022, C-401/19, Republic of Poland v European Parliament, Council of the European Union). The Court followed the opinion delivered on 15 July 2021 by the Advocate General Saugmandsgaard Øe, which we commented on here.

In short, article 17 organises a new liability regime for online platforms. Large online content-sharing service providers perform an “act of communication to the public” by giving public access to protected works uploaded by their users. It is a new regime because de CJEU had previously held that there was no such act on the basis of two other directives, prior to the adoption of DSM directive (see the case law Cyando and Youtube, and our comment here). Is this decision overturned? No. The commented decision states that the absence of liability (due to the absence of an act of communication to the public) remains applicable where the platforms do not fall within the scope of the new DSM Directive.

To the question whether article 17 is a restriction on freedom of expression, the CJEU answers positively. The requirements of Article 17(4) (that allow a platform not to be liable for an act of communication of a protected work for which it has no authorisation) oblige platforms to implement preventive control and filtering measures. These measures are a restriction on freedom of expression.

However, the CJEU states that the restriction is justified:

• It is provided for by a law that is sufficiently precise and clear;
• It respects the essential content of the right to freedom of expression; and
• It is proportionate. 

This article was co-authored by Edouard Cruysmans in his capacity of Professional Support Lawyer at Stibbe.