[Guest post] Cheaper by the Dozen? Another CJEU referral on YouTube’s ‘active role’

The IPKat has learned that another case has just been referred to the Court of Justice of the European Union (CJEU) in the context of proceedings concerning the right of communication to the public under the InfoSoc Directive, the hosting safe harbour in Article 14 of the E-commerce Directive and the liability of platform operators (in this case the platform at issue is YouTube).

Former GuestKat Mirko Brüß reports:

Cheaper by the Dozen? Another CJEU referral on YouTube’s ‘active role’ 

The more, the merrier.
Also true for CJEU referrals?
Readers of this blog know that in September 2018, the German Federal Court of Justice made a YouTube, C-682/18) asking, among other things, whether "the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1)" of the InfoSoc Directive, insofar as certain conditions are satisfied.

Austria’s Oberster Gerichtshof (OGH) has now referred another case to the CJEU, concerning very similar but not identical questions.

The case (Puls 4 TV, C-500/19) has the operator of an Austrian TV channel as the claimant and YouTube as the defendant. Out of court, YouTube was asked to remove certain videos that showed content owned by the claimant, and complied expeditiously. However, the claimant asked YouTube to ensure that no further videos that contain content owned by him become available on the platform, effectively asking for “notice-and-staydown”. The broadcaster alleges that YouTube plays a central and active role, which has provided it with actual knowledge of infringement. YouTube’s actions would therefore amount to a communication to the public in the sense of Art. 3(1) of the InfoSoc Directive. 

YouTube argued that it operates a neutral platform and that infringements were made only by its users and it did not have knowledge of infringement. More interestingly, the platform also asserted that even when its conduct must be considered as an act of communication to the public, it would still be shielded from liability by the hosting provider privilege granted in Art. 14 of the E-Commerce-Dirctive. 

In the first instance, the broadcaster came out victorious, but the decision was overturned on appeal. The OGH has now stayed the proceedings (case number OGH 4Ob74/19i) and asked the CJEU a number of questions:

1. Is Article 14(1) of Directive 2000/31/EC to be interpreted as meaning that the operator of an online video platform, as a host service provider, plays an active role, leading to a loss of the liability privilege, as a result of providing or offering to the user the following accompanying activities in addition to the provision of storage space for third-party content:
- suggesting videos according to subject areas;
- facilitating visitors to search by title or content information by means of an electronic directory of content, with the user being able to specify the title or content information;
- providing online tips in relation to the use of the service (‘Help’);
- with the user’s consent, linking the videos uploaded by the user with advertisements (but not any self-promotion by the platform operator) according to the selection of the target group by the user?

2. Is a national legal position whereby the cease-and-desist obligation of a host service provider (intermediary service provider) in an active role as accessory in respect of infringements by its users exists only on the condition that the accessory has knowingly encouraged the user’s infringement consistent with the first sentence of Article 11 of Directive 2004/48/EC, or is this provision to be interpreted as meaning that the Member States must not make claims for a prohibitory injunction made by right holders against accessories dependent on knowing encouragement of the user’s infringement?

3. Are the provisions in Articles 12 to 14 of Directive 2000/31/EC on the liability of intermediary service providers to be considered to be horizontal limitations of liability that benefit any intermediary service provider in a neutral role, even where its activity is to be qualified under copyright law as communication to the public that it has committed itself?

4. Are Article 14(3) (and also Article 12(3) and Article 13(2)) of Directive 2000/31/EC, Article 8(3) of Directive 2001/29/EC and the third sentence of Article 11 of Directive 2004/48/EC to be interpreted as meaning that the liability privilege in accordance with Article 14(1) of Directive 2000/31/EC is available to a host service provider (intermediary service provider) in a neutral role even in the event of a claim for a prohibitory injunction being brought against it and that therefore even an injunction order by the courts with respect to such an intermediary service provider is admissible only if that intermediary service provider has actual knowledge of the illegal activity or information, or is such an injunction order by the courts admissible only if the host service provider does not expeditiously remove or disable the content objected to as infringing after a specific warning and confirms the infringement in judicial proceedings?

The OGH highlighted that it was aware of the earlier YouTube referral (C-682/18) and that some of the questions overlap. However, it still felt the need to ask additional questions. 

Update on 21 August 2019 - This blog post has been updated after it became clear that the case Ellmes Property Services (C-433/19) is in fact not another referral regarding YouTube’s liability, as originally explained. The legal Database LexisNexis wrongly connected the OGH case OGH 4Ob74/19i to „Ellmes Property Services“ and listed „Pulse 4 TV“ as a separate case on their website. This GuestKat apologizes for any confusion this may have caused. 
[Guest post] Cheaper by the Dozen? Another CJEU referral on YouTube’s ‘active role’ [Guest post] Cheaper by the Dozen? Another CJEU referral on YouTube’s ‘active role’ Reviewed by Eleonora Rosati on Tuesday, August 20, 2019 Rating: 5

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