Opinion A-G: Article 17 of the DSM Directive provides sufficient safeguards to delimit restriction of freedom of expression

Case C‑401/19. Republic of Poland v European Parliament, Council of the European Union. Opinion of A-G Saugmandsgaard Øe.

Copyright. The Republic of Poland asks the Court, principally, to annul Article 17(4)(b) and (c) of the DSM Directive and, in the alternative, to annul Article 17 in its entirety. To this end, the Republic of Poland argues that the sharing service providers must use software that allows automatic filtering of content and that such preventive surveillance limits the right to freedom of expression and information, as guaranteed by Article 11(1) of the Charter. The Court is asked to examine the question of the liability borne by providers of online sharing services when content that is protected by copyright or related rights is uploaded by users of those services.

Advocate General Saugmandsgaard Øe concludes that Article 17 of the DSM Directive is compatible with freedom of expression and information and that Poland's appeal should therefore be dismissed.

"88. It is clear from the foregoing section that, as the Republic of Poland submits, the contested provisions entail a limitation on the exercise of the right to freedom of expression, as guaranteed by Article 11 of the Charter.

89. However, freedom of expression is not an absolute right. In accordance with Article 52(1) of the Charter, limitations on the exercise of that freedom are permissible provided that they, first, are ‘provided for by law’, secondly, respect the ‘essence’ of that freedom and, thirdly, respect the principle of proportionality.

115. Finally, I would point out that, although the EU legislature cannot delegate to online intermediaries the task of carrying out general preventive monitoring of information shared or transmitted through their services, it may, in my opinion, without undermining the ‘essence’ of the freedom of expression, choose to impose certain active surveillance measures concerning certain specific illegal information, on certain online intermediaries. I note, moreover, that Article 17 of Directive 2019/790 is, in that regard, in line with a series of communications and recommendations from the Commission (138) and new regulations (139) which seek, to that effect, to make certain intermediaries – in particular the large ‘platforms’ – contribute to the tackling of certain types of illegal content. [...]

117. Compliance with the second sub-condition is not disputed by the parties. Having regard to the general objective pursued by Article 17 of Directive 2019/790, (142) the limitation at issue meets the ‘need to protect the rights and freedoms of others’, namely copyright and the related rights of the rightholders. I note that intellectual property is protected as a fundamental right, inter alia, (143) in Article 17(2) of the Charter and Article 1 of Protocol No 1 to the ECHR. (144) [...]

137. More specifically, the proportionality of the contested provisions lies, in my view, in the combination of the factors put forward by the defendants and the interveners, namely, first, the extent of the economic harm to rightholders caused by their works being uploaded illegally to online sharing services, having regard to the huge amount of content uploaded to those services and the speed of the exchange of information on the Internet, (164) secondly, the fact that, for the same reasons, the ‘notice and take down’ system makes it difficult for rightholders to control the use of their works on such services, thirdly, the difficulties they face in prosecuting the users responsible and, fourthly, the fact that the monitoring obligations concern specific intermediary providers. On the latter point, I note that sharing service providers, by the content promotion that they carry out, (165) have some influence on the information accessed by the public. Those aspects tend, to a certain extent, (166) to bring those providers into line with traditional intermediaries such as editors, and therefore it may be proportionate, so far as they are concerned, to adopt a specific liability regime which is different from that applicable to other host providers. (167)

164. In my view, in adopting Article 17(7) of Directive 2019/790, the EU legislature, aware of the risks of ‘over-blocking’ (205) which may result from the liability regime it has established, and in order to ensure a ‘fair balance’ between the rights and interests at stake and protect the freedom of expression of sharing service users, (206) has provided for a clear and precise limit on the filtering and blocking measures which must be implemented by the providers of those services in accordance with paragraph 4 of that article.

191. It follows from all the foregoing, in my view, that, in accordance with a combined reading of the contested provisions and Article 17(7) of Directive 2019/790, the filtering measures which sharing service providers are required to implement must comply with two cumulative obligations: they must seek to prevent the uploading of content which unlawfully reproduces the works and other protected subject matter identified by rightholders while not preventing the making available of content which lawfully reproduces that subject matter.

204. It is clear from the foregoing sections, in my view, that Article 17 of Directive 2019/790 contains sufficient safeguards to delimit the scope of the limitation on the exercise of the right to freedom of expression resulting from the contested provisions.

220. It follows from all of the foregoing considerations that the limitation on the exercise of the right to freedom of expression and information resulting from the contested provisions, as interpreted in this Opinion, satisfies all of the conditions laid down in Article 52(1) of the Charter. In my view, that limitation is therefore compatible with the Charter. Consequently, the action brought by the Republic of Poland must, in my view, be dismissed. (265)"

Read the full conclusion here.