New obligations for online content-sharing service providers?

The Advocate General of the Court of Justice of the European Union, has recommended that the Court rule that Article 17 of Directive 2019/790 on copyright and related rights in the Digital Single Market (the so-called Copyright Directive) is compatible with the Charter of Fundamental Rights of the European Union. Thus, the Advocate proposed that the CJEU should reject the action brought by Poland in Case C-401/19.

Under the aforementioned Article 17 of the Copyright Directive, online content-sharing service providers are liable whenever a work or protected subject-matter is unlawfully posted online on their services. As Poland submitted in its action, that provision infringes the essence of the right to freedom of expression, which is guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. According to Poland, preventive supervision of the provider of online content-sharing services infringes this right as such.

As the Advocate General of the CJEU pointed out, the legislation challenged by Poland does indeed interfere with the freedom of expression of users of online content-sharing services, but only to the extent permitted under the Charter of Fundamental Rights. According to the Advocate, EU legislation may impose an obligation on online intermediaries to control certain information provided. However, as also pointed out, content providers cannot be obliged to search for any unlawful information among them.

If the final verdict shares the views expressed in the Advocate’s opinion, this would lead to an increase in the scope of obligations on online content service providers. De facto, in order to prevent their potential liability in the situation of making unauthorised works available to the public via their platforms, they will be obliged to introduce important safeguards to control the content of works (more formalised rules of procedure) or tools for automatic filtering of content – which may in fact result in preventive control of all content posted on websites.