CJEU: Filtersoftware obligation is accompanied by appropriate safeguards by the EU legislature

28-04-2022 Print this page
IPPT20220426, CJEU, Republic of Poland v European Parliament, Council of the European Union

By its action, Poland, asks to annul the obligations imposed on online content-sharing service providers. The prior automatic review (filtering) of content uploaded by users) has been accompanied by appropriate safeguards by the EU legislature.


The Republic of Poland claims that the Court should:
– annul Article 17(4), point (b), of Directive 2019/790 and Article 17(4), point (c), in fine, namely the wording ‘and made best efforts to prevent their future uploads in accordance with point (b)’;
– in the alternative, were the Court to find that the provisions referred to in the preceding indent cannot be severed from the other provisions of Article 17 of that directive without altering the substance thereof, annul Article 17 in its entirety;

The Republic of Poland brought an action seeking, principally, the annulment of point (b) and point (c), in fine, of Article 17(4) of Directive 2019/790 and, in the alternative, annulment of that article in its entirety. It submits, in essence, that those provisions require the providers to carry out – by means of IT tools for automatic filtering – preventive monitoring of all the content which their users wish to upload, without providing safeguards to ensure that the right to freedom of expression and information is respected. (3)


The Court of Justice, sitting as the Grand Chamber, gives a ruling for the first time on the interpretation of Directive 2019/790. It dismisses Poland’s action, holding that the obligation of the providers, laid down by that directive, to carry out a prior automatic review of the content uploaded by users, is accompanied by appropriate safeguards in order to ensure respect for the right to freedom of expression and information of those users and a fair balance between that right and the right to intellectual property.

40      According to the Republic of Poland, in order to be able to fulfil those obligations and therefore benefit from the exemption from liability, provided for in Article 17(4) of Directive 2019/790, online content-sharing service providers are required to review all the content uploaded by their users, prior to its dissemination to the public. In order to do so, those providers must, in the absence of other practicable solutions, use automatic filtering tools.

41      In the Republic of Poland’s view, such preventive review constitutes a particularly serious interference with the right to freedom of expression and information of users of online content-sharing services, since, first, it carries with it the risk that lawful content will be blocked and, secondly, the unlawfulness and, thus the blocking of content, is determined automatically by algorithms, even before any dissemination of the content in question.

45      It should be noted in that regard that the sharing of information on the internet via online content-sharing platforms falls within the scope of Article 10 ECHR and Article 11 of the Charter.

86      In that context, it must be borne in mind that the Court has already held that a 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. The Court emphasised, in that regard, that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. In addition, in some Member States certain works fall within the public domain or may be posted online free of charge by the authors concerned (see, to that effect, judgment of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraphs 50 and 51 and the case-law cited).