AG Øe advises CJEU to rule that Article 17 is COMPATIBLE with the EU Charter of Fundamental Rights and should not be annulled

AG Saugmandsgaard Øe

Is Article 17 of Directive 2019/790 (DSMD) compatible with the EU Charter of Fundamental Rights, notably its Article 11 and the principle of freedom of expression and information?

According to Poland, the answer should be in the negative. 

Indeed, shortly after the adoption of the Directive in 2019, this country lodged a complaint (C-401/19) before the Court of Justice of the European Union (CJEU), seeking the partial or - as a subsidiary claim - complete annulment of the provision.

This morning, Advocate General (AG) Saugmandsgaard Øe released his Opinion, advising the Court to rule that Article 17 is compatible with the Charter and should not be annulled. All this is true insofar as the monitoring obligations of online content sharing service providers (OCSSPs) are circumscribed by sufficient safeguards, which the provision itself contains, so to minimize the impact of the resulting filtering activities on users’ freedom of expression and information.

As it will be discussed below, this conclusion was to be expected, also considering last year’s Opinion in YouTube, C-682/18 and C-683/18 [IPKat here] by the same AG.

Preliminary remarks and postscriptum

The AG noted at the outset 3 key things: 

• First, he maintained what he had expressed in last year’s YouTube Opinion, that is that the regime in Article 17 is a “new liability regime”; 
• Secondly, he submitted that Article 17 imposes on OCSSPs obligations to monitor which “as a general rule, take the form of filtering”; 
• Thirdly, the alleged undue interference with the Charter should be assessed in light of the guidance provided by the CJEU in its earlier decisions in Scarlet, SABAM, and Glawischnig-Piesczek.

The Opinion also contains a postscriptum, meant to react to the CJEU YouTube decision [IPKat here] and the publication of the Commission Article 17 Guidance [IPKat here], both of which took place after the Opinion had been finalized. With regard to the former, the AG considered his analysis compatible with that ruling. Turning to the latter, he criticized the considerations made therein with regard to earmarked content.

Having reviewed the rationale and history of Article 17, the AG undertook an analysis of the very admissibility of the action lodged by Poland. He agreed with the Parliament, the Council, the Commission, and the French government that Poland’s request for partial annulment of Article 17 should be declared inadmissible by the Court. He considered that the only option available to the CJEU is to either save or annul Article 17 in its entirety. He also noted that the removal of Article 17 from the body of the DSMD would not affect the other provisions therein, considering the multiple rationales supporting that piece of legislation.

All this said, the AG turned to the substantive assessment of the action.

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Substantive analysis

The AG divided his analysis into 3 parts: first, he considered the scope of Article 17; secondly, he tackled the limitation to the exercise of freedom of expression/information; finally, he addressed the question of compatibility between Article 17 and Article 11 of the Charter.

Scope of the provision

The AG considered the meaning of letters (b) and (c) in Article 17(4) and concluded that OCSSPs are under an obligation to engage in preventative monitoring, in accordance with what may be expected from a diligent operator and in compliance with the principle of proportionality.

He also noted that filtering may be done in different ways. Automatic content recognition (ACR) tools are based on different techniques, inter alia including hashing, watermarking and fingerprinting. This said, the Directive is technologically agnostic, as it does not refer to any specific filtering technology. However, the AG agreed with Poland that in many cases ACR tools will be used.

Interference with freedom of expression/information

The AG considered that freedom of expression/information (but also freedom of the arts in some cases) “is undeniably relevant in the present case” and that Article 17 does interfere with it. Such interference is attributable to EU legislature.

He noted that Article 11 of the Charter corresponds – in both meaning and scope – to Article 10 ECHR. It follows that the EU provision must be interpreted in light of the case law of the European Court of Human Rights (ECtHR).

As it is the case for Article 10 ECHR, also the right under Article 11 of the Charter is not absolute: limitations on its exercise are permissible insofar as, in accordance with Article 52 of the Charter, (1) they are provided for by law, (2) respect the essence of the right in Article 11, and (3) are in accordance with the principle of proportionality, as is also required under Article 17(5).

According to the AG, Article 17 complies with all requirements above.

Furthermore, the monitoring obligations under Article 17(4) are to be regarded as being specific in nature, not general. As such, they are not contrary to Article 15 of the Ecommerce Directive. In this regard, the AG considered that the position of the CJEU has undergone an evolution over time, which appears “justified”.

Safeguards and user rights

The AG also considered that Article 17(7)-(9) contains “meaningful safeguards to protect the users of sharing services against measures involving the improper or arbitrary blocking of their content.” With particular regard to Article 17(7), the AG submitted that – through that – EU legislature has not simply mandated Member States to implement certain copyright exceptions in their own laws, but has “expressly recognised that users of sharing services have subjective rights under copyright law. Those users now have the right, which is enforceable against the providers of those services and rightholders, to make legitimate use, on those services, of protected subject matter, including the right to rely on exceptions and limitations to copyright and related rights.” Such acknowledgement, continued the AG, would reflect CJEU case law itself.

Insofar as Article 17(7) is concerned, the AG submitted that contractual override is prohibited in respect of those exceptions and that that paragraph imposes an obligation of result on OCSSPs:

The limit of permissible filtering and blocking measures is therefore clearly defined: they must not have the objective or the effect of preventing such legitimate uses. That provision therefore helps to counteract the tendency of those providers to be ‘overzealous’ and, therefore, to circumscribe the extent of the interference with freedom of expression so that it is limited to the dissemination of content which infringes copyright rules.

Ex ante/ex post blocking

The AG also weighed in on the vexata quaestio of ex ante/ex post blocking: based on a literal, systematic and historical analysis of Article 17, the AG agreed with the Parliament, Council and Commission that legitimate uses under Article 17(7) should be taken into account ex ante by OCSSPs. 

It follows that the complaint and redress mechanism under Article 17(9) would constitute “an additional and final safeguard for situations where, despite the obligation in paragraph 7, those providers nevertheless block such legitimate content mistakenly.”

This conclusion would also comply the requirements of making best efforts and behaving with professional diligence: “Since those providers find themselves in a bilateral professional position vis-à-vis users and rightholders, they must act ‘diligently’ in relation to both categories.”

The AG felt strongly about this point, as he invited “the Court to confirm unequivocally in its forthcoming judgment that this is the correct interpretation of Article 17.”

He also considered that, to minimize the risk of overblocking, an OCSSP “should only be required to filter and block information which has first been established by a court as being illegal or, otherwise, information the unlawfulness of which is obvious from the outset, that is to say, it is manifest, without, inter alia, the need for contextualisation.”

In light of Glawischnig-Piesczek, the filtering measures which OCSSPs are required to use must “be limited to content which is ‘identical’ or ‘equivalent’ to works and other protected subject matter identified by rightholders.” Vice versa, the uploads should proceed “in all ambiguous situations – short extracts from works included in longer content, ‘transformative’ works, and so forth – in which, in particular, the application of exceptions and limitations to copyright is reasonably conceivable”.

Comment

As stated in the opening, the substantive conclusion that Article 17 is – indeed – compatible with the Charter is not at all surprising. 

In fact, it is – rather explicitly – what AG Øe suggested a year ago in his YouTube Opinion. He acknowledged that it is for EU legislature to create new balance between different rights and interests. While refusing that Article 17 would have retroactive application (and, so, the argument that it would be a mere clarification of the law as it pre-existed the Directive), he also noted that the regime introduced therein seeks to take into account different rights and interests.

This, substantially, is what he reiterated in today’s Opinion.

Also considering the language employed by the CJEU in last month’s YouTube ruling [you can access the recording of the Joint IPKat/IFIM/BLACA rapid response event here], it is to be expected that the Court, at least on the key issue of compatibility between Article 17 and the Charter, will follow his AG.