According to Advocate General Saugmandsgaard Øe, in case C-401/19 Poland v Parliament and Council at the Court of Justice of the European Union (CJEU), Article 17 of Directive 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive) is compatible with the freedom of expression and information guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union.
Article 17 of the DSM Directive establishes that online intermediaries are liable when protected content is illegally uploaded by users. In order to be exempt from this liability, intermediaries must demonstrate that they made best efforts to obtain an authorisation and to ensure the unavailability of specific works for which the right holders have provided them with the relevant and necessary information, and that they disabled access to or removed from their websites without delay.
Article 17 is also dubbed as the ‘upload filter regulation’ and has gathered a lot of criticism from human rights groups at the time when DSM Directive was adopted. The concern was that in order to reduce their liability risk, intermediaries would use upload filters to block more content from being uploaded than was legally required and infringe on the freedom of expression.
For these reasons, Poland brought an action before CJEU asking for annulment of Article 17 of the DSM Directive. Advocate General Henrik Saugmandsgaard Øe now proposes that the CJEU should find that Article 17 of Directive 2019/790 is compatible with freedom of expression and information and therefore dismiss the action brought by Poland. In his reasoning, Advocate General notes that the ‘contested provisions respect the ‘essence’ of freedom of expression and information’ and that the interference with the freedom of expression satisfies the conditions of the Charter of Fundamental Rights of the European Union.
The CJEU usually issues its judgement within 6 months after the opinion of Advocate General is published.