On 26 April 2022, the CJEU Grand Chamber issued a much-awaited judgment in a case brought by Poland concerning article 17 of the DSM Directive. The complaint was rejected on formal grounds with regard to the main plea, which sought annulment of article 17(4), point b and point c in fine of the DSM Directive, and dismissed as being without merit with regard to the other issues, i.e. annulment of article 17 in full.

Poland claimed that the contested provisions breached freedom of expression and information guaranteed under article 11 of the Charter of Fundamental Rights of the European Union. An obligation imposed on online content-sharing service providers of prior review of all content that users wished to upload was alleged to be a serious interference in those freedoms. Moreover, according to the complaint,  service providers will be required to use automatic filtering tools, creating a risk that lawful content would be blocked.

Firstly, the court found that it is not possible to seek annulment solely of article 17(4) point b and point c in fine of the DSM Directive, because this would alter the substance of article 17 and create an entirely different liability regime significantly more favorable to online content-sharing service providers. Therefore, in principle, only a plea for annulment of the entire article 17 of the DSM Directive could be examined.

The court found that any kind of new, separate liability regime for online content-sharing service providers would restrict the right of freedom of expression and information by requiring service providers to review content that users wish to upload on platforms prior to dissemination to the public, while the court did not consider this restriction to breach the substance of those freedoms or the principle of proportionality, and therefore found it to be permitted. This is because article 17 of the DSM provides that steps taken by service providers may not prevent the sharing of works lawfully posted online. When examining proportionality, it was noted that in the context of sharing content online, copyright protection must be accompanied to a certain extent by limitation of the right to users to freedom of expression and information. Further, the service provider liability described in article 17(4) of the DSM Directive was not only appropriate, but also necessary to meet the need to protect intellectual property rights.

The CJEU also stressed that the EU legislature specified a range of safeguards which guarantee users the right of freedom of expression and information. For example, the court drew attention to the difference between requiring best efforts to achieve an end as provided for in the last sentence of article 17(4), point b and point c,  and prescribing a specific result to be achieved under article 17(7). The court stated that prior measures may not be taken that block access to protected works or other subject matter uploaded by users lawfully, for example due to an exception or limitation of copyright or related rights.

While consistently stating that online content-sharing service providers may use automatic recognition and filtering tools for such content, the court did however exclude measures which filter and block lawful content when uploading. The court said that any filtering system introduced must distinguish adequately between unlawful and lawful content.

An essential safeguard of freedom of expression and information is the obligation for service providers to put in place an effective complaint and claim mechanism in the event of disputes over the disabling of access to or the removal of works, as well as member states ensuring that both out-of-court redress mechanisms and judicial remedies for pursuing claims are available for the settlement of disputes.

The court voiced approval for the wording itself of provisions that do not describe specific steps that online content-sharing service providers are required to take to comply with obligations under article 17(4) point b and point c of the DSM Directive, because this means that the obligations thus imposed can be adapted to the particular circumstances of the various service providers (…) and also to the development of industry practices and available technologies.

Although the time limit for implementing the DSM Directive into Polish law was almost one year ago[1], unfortunately, to date, no Polish legislative proposal implementing the directive has been published. Hopefully, the CJEU judgment ruling on Poland’s objections will improve the speed of the legislative process, and Polish law will be properly harmonized with EU law, as this will protect artists’ rights more effectively.

[1] Under article 29(1) of the DSM Directive, member states were required to bring into force the laws, regulations, and administrative provisions necessary to comply with the directive by 7 June 2021.