It is four and a half months since the CJEU — in its judgment in case C-401/19 — set clear limits for the use of automated filters to comply with the provisions of Article 17 of the CDSM directive. The court ultimately concluded that Article 17 is lawful and rejected Poland’s request for annulment of parts of the Article. However, this does not mean that the ruling absolves member states working on their national implementations and the European Union from responding to the ruling.
The position of the European Commission is particularly interesting here as Article 17(10) explicitly tasks the EU’s executive body with “issue[ing] guidance on the application of this Article […] to balance fundamental rights and of the use of exceptions and limitations”. When the Commission published its guidance on the 4th of June 2021 it wisely noted the following:
The judgment of the Court of Justice of the European Union in the case C-401/19 2 will have implications for the implementation by the Member States of Article 17 and for the guidance. The guidance may need to be reviewed following that judgment.
Even though it is rather obvious that the CJEU judgment does indeed call for the revision of the guidance, the Commission has so far been silent on its plans to review it. This makes the publication of a Interdisciplinary Mapping report on the Copyright Content Moderation in the EU by the European Commission-funded ReCreating Europe project very timely. The 300-page report by João Pedro Quintais, Péter Mezei, István Harkai, João Carlos Magalhães, Christian Katzenbach, Sebastian Felix Schwemer, and Thomas Riis concludes with a series of “Recommendations for Future Policy Actions” (pdf — pages 300-302) most of which focus on the implications of the CJEU judgment for the Commission’s guidance. With regards to the Commission’s guidance, the researchers note:
- Considering the potential for legal uncertainty and fragmentation of the digital single market as regards copyright content moderation, we recommend that the Commission reviews its Guidance on art. 17 CDSMD (COM/2021/288 final) in order to provide clearer guidelines on the definition of OCSSPs, especially for small and medium-sized online platforms. […]
- We further recommend that the Commission reviews its Guidance in order to provide guidelines from the perspective of EU law as to the concrete implications of a “user rights” implementation of paragraph (7) in national laws. This should include, to the extent possible, concrete guidance on what type of actions users and their representatives (e.g., consumer organisations) may take against OCSSPs to protect their rights. […]
- We further recommend that the Commission’s Guidance is updated to fully reflect the Court’s approach in case C-401/19, as regards the complementary role of complaint and redress mechanisms under paragraph (9).
- The Commission should review its Guidance to clearly align it with the Court’s judgment in case C- 401/19, namely by clarifying that: (1) OCSSPs can only deploy ex-ante filtering/blocking measures if their content moderation systems can distinguish lawful from unlawful content without the need for its “independent assessment” by the providers; (2) such measures can only be deployed for a clear and strictly defined category of “manifestly infringing” content; and (3) such measures cannot be deployed for other categories of content, such as “earmarked content”. Member States should further adjust their national implementations of art. 17 CDSMD to reflect these principles.
- Take into consideration the approach proposed by the AG Opinion on how to limit the application of filters to manifestly infringing or “equivalent” content, including the consequence that all other uploads should benefit from a “presumption of lawfulness” and be subject to the ex-ante and ex-post safeguards embedded in art. 17, notably judicial review. In particular, the AG emphasized the main aim of the legislature to avoid over-blocking by securing a low rate of “false positives”. Considering the requirements of the judgment, in order to determine acceptable error rates for content filtering tools, this approach implies that the concept of “manifestly infringing” content should only be applied to uploaded content that is identical or nearly identical to the information provided by the rightsholder that meets the requirements of art. 17(4) (b) and (c) CDSMD.
Taken together, these recommendations would significantly improve the value of the Commission’s guidance and fix the glaring flaws that were introduced into the guidance in response to political pressure from rightsholders. In making these recommendations, the ReCreating Europe research team has effectively done the Commission’s homework and presented the Commission with a clear basis for bringing the guidance in line with the requirements and limits developed by the CJEU.
Given that a number of Member States are still working on their national implementations, the Commission should not waste time and issue an updated version of the guidance as soon as possible.
The full report also contains a number of additional policy recommendations. These include recommendations directed to member states that mirror parts of the recommendations for the Commission listed above. The final two recommendations focus on strengthening the position of creators who seek to monetize their content via online platforms and a recommendation to increase the transparency of automated copyright content moderation practices by online platforms by leveraging the provisions of the recently adopted Digital Services Act.