Online platforms and uploading of protected works: no direct liability for operators of online platforms

According to the opinion of Advocate General delivered on 16 July 2020, operators of online platforms are not directly liable for the illegal uploading of protected works by the users of those platforms.

A music producer (C-682/18) and a publishing group (C-683/18) consider that works protected by copyright have been uploaded without their authorisation respectively on Youtube and Uploaded. The main question referred for a preliminary ruling to the Court of Justice of the European Union (CJEU) concerns the liability of the operators of online platforms.

The liability of operators of online platforms: a direct or an indirect liability?

First, the Advocate General confirms that the uploading of works on online platforms is a communication to the public (§ 59) within the meaning of Article 3(1) of Directive 2001/29. This communication implies a primary (or direct) liability which must only be borne by online platforms users (§64), and not by the operators of such platforms (§§ 76 and 93). According to the Advocate General, only the users play an essential role in the communication as they knowingly decide to communicate a protected work, use technical means and an automatic procedure made available by the platform operators considered as mere technical intermediaries (§§ 69 and 70).

Secondly, as regards the secondary (or indirect) liability, the Advocate General reasons in two steps.

• He firstly excludes the application of the GS Media, Stichting Brein I (Filmspeler case) and II (The Pirate Bay case) precedents (§§ 94 to 106). According to these decisions, facilitating the unlawful transmission of protected works by third parties may constitute a communication to the public and result in primary liability of the operators. In the view of the Advocate General, this case law goes too far. Therefore, without applying this case law, he considers that the secondary liability of operators may however be engaged, a matter which is not regulated by European Union law.
• Secondly, in the alternative, he decides to apply the above case law if the Court were not to follow his opinion (§§ 107 to 131). In such case, there is a primary liability only if two conditions are met. (i) The operators must have played an essential role in the unlawful transmission, which is, according to this above case law, the case where they facilitate it. (ii) In addition, operators must deliberately facilitate this communication. The Advocate General proposes a double test to determine whether operators act knowingly: it is necessary “to check, first, whether the characteristics of services offered by the operators have an objective explanation and offer added value for legal uses of that service and, second, whether the provider took reasonable steps to combat illegal uses of that service” (§ 124).

Is the liability exemption for the storage activity applicable to the online platform operators?

Thirdly, the Advocate General considers that online platform operators benefit from the exemption from liability - both primary and secondary (§ 138) - for their storage activity (Art. 14 of the e-commerce Directive 2000/31), unless they played an active role (knowledge and control of the unlawful information) in the unlawful communication (§ 150) or deliberately facilitated the unlawful communication made by third parties. The Advocate General adds that the non-application of the exemption due to the knowledge implies a concrete knowledge of unlawful information and not an abstract knowledge of the fact that they potentially store unlawful content (§§ 172 to 184). He also explicitly rejects a dynamic interpretation for Article 14(1) (which includes the principle of “notice and take down”) by refusing to incorporate in the scope of this provision a principle of “notice and stay down”, i.e. the obligation to remove not only a particular file, but also any file with equivalent content (§ 194).

Are injunctions compatible with this liability regime?

Finally, the Advocate General states that operators may be subject to injunctions imposed on the basis of Article 8(3) of the Directive 2001/29. These injunctions may be preventive or repressive, without going so far as to impose global obligations to control, to detect or to block illegal information (thereby violating Article 15 of Directive 2000/31). Such measures (including a ‘stay down’ obligation (§ 195)), when they are targeted at a specific file, identical copies or equivalent files, are valid, provided they are proportionate (§ 220).

Conclusion

This opinion, together with the Eva Glawischnig-Piesczek v. Facebook case law, is part of the creation of a liability regime for online platform operators. In Piesczek case, the CJEU held that Article 15 of Directive 2000/31 does not preclude the targeted measures described above from being imposed on a hosting provider in the context of an action relating to an infringement of the right to honour.

The reasoning of the Advocate General is influenced by the desire to avoid that the intermediary providers become “judges of online legality” (§ 190), with a risk of an “over-removal” of online content (§ 189). These interests were also taken into account by the European legislator, who introduced in Article 17 of the Directive 2019/790 (which must be transposed into Member States Law by 7 November 2021) a new liability framework applicable to online content-sharing service providers. This framework will oblige providers to obtain the authorisation of the right holders of works uploaded by users and the exemption from liability provided for in Article 14 of Directive 2000/29 will no longer apply to them.

The interpretation proposed in this opinion seems not very dynamic. Nevertheless, it could ultimately satisfy both operators of online platforms and right holders. The former are not directly liable unless they have concrete knowledge of the illicit works. The latter have the opportunity of protecting their rights by means of injunctions against the operators. Let's wait and see if the Court will follow its Advocate General.

By Edouard Cruysmans, Cyril Fischer and Erik Valgaeren