On the 28th of April, we hosted the second COMMUNIA Salon of 2022 to discuss the implications of the CJEU judgment in Case C-401/19, which rejected the request of the Polish government to annul Article 17 and confirmed that this provision can be reconciled with the right to freedom of expression provided that certain users rights safeguards are in place.
The Salon started with João Pedro Quintais (Assistant Professor at the Institute for Information Law (IViR), University of Amsterdam), who presented an overview of the case and the three main takeaways of the judgment, according to his preliminary reading of the judgment. First, the Court clarified that Article 17 follows a normative hierarchy, where the obligation of result to protect user rights or freedoms takes precedence over the obligations of best efforts that exist for preventive measures. Secondly, the ruling makes it clear that ex-post procedural safeguards are insufficient to take care of overblocking; ex-ante safeguards are also required to protect user rights or freedoms. Finally, with regards to filtering measures, it appears that it will be difficult to argue that the judgment leads to a conclusion that is different from the AG Opinion, according to which only manifestly infringing content can be blocked at upload.
Next, Marco Giorello (Head of the European Commission’s Copyright Unit at DG CONNECT) shared his first insights on the judgment. Giorello started by saying that the Commission was satisfied that the Court had not only confirmed the validity of Article 17 but it had also largely confirmed the interpretation of the provision brought forward by the Commission. He highlighted that, since the judgment did not define how exactly the national legislator has to implement Article 17, the Commission’s guidelines for the implementation of Article 17 (which Giorello could not yet confirm if the Commission would revise in light of the judgment) could help legislators, courts and market players to get a sense of what could be a practical way of implementing the general principles drawn by the CJEU. Finally, he added that, while it is not possible to draw firm conclusions on what the judgment means for the Member States’ implementation (namely if they could make literal implementations of Article 17), it is very clear that ex-post redress mechanisms are not enough and there needs to be an ex-ante consideration for users rights leading to the distinction between lawful/unlawful content at upload.
The third speaker, Felix Reda (former MEP and Control © project lead at the Gesellschaft für Freiheitsrechte), started by highlighting that, given that the CJEU had already confirmed that under very certain circumstances automated content recognition technologies can or should be used, he was quite happy with the outcome of the judgment, since the Court now sets specific requirements for upload filters, namely that they cannot be used unless they can ensure that lawful content does not get blocked, which is a very high bar to meet. Reda then focused his intervention on the discussion of who has to define the ex-ante safeguards against overblocking. In his view, the platforms cannot be the ones defining the technical parameters of the upload filters. According to Reda’s reading of the judgment, this follows logically from the conclusion that the platforms cannot be required to employ upload filters that do not adequately distinguish between legal and illegal content, together with the conclusion that they cannot be required to make an independent assessment of the lawfulness of the content at upload. As a consequence, the verbatim implementations of Article 17 appear to not be enough. Member States need to define ex-ante safeguards in the law (or, possibly, in secondary legislation).
Finally, Eliška Pírková (Global Freedom of Expression Lead at Access Now) presented the civil society and fundamental rights perspective and connected the discussion with the recently finalized Digital Services Act. Pírková started by recalling that the civil society has for many years challenged the deployment of upload filters because they impose ex-ante restrictions on legal forms of expression. Still, since upload filters are a reality, she welcomed the fact that online platforms do not have to turn into judges of the legality of uploaded content; that filtering system must be able to recognize, and not automatically block, lawful content; and the ex-ante safeguards of fundamental rights of users. She then turned on to discuss the relationship between the horizontal umbrella framework provided by the DSA and the sectoral legislation that precedes such regulation, such as Article 17 of the DSM directive.
The panel was followed by a Q&A session with the participants.