CJEU finds that the controversial Article 17 of the Digital Single Market Directive (formerly Article 13) is compatible with freedom of expression – but seems to close the door to indiscriminate use of upload filters by content platforms

In a judgment of 26 of April the European Court of Justice dismissed an action brought by Poland against Article 17 of the directive on copyright and related rights in the Digital Single Market (the “Directive”).

The Republic of Poland had requested the annulment of Article 17 of Directive 2019/790 on grounds that it would impose a de facto obligation on Web 2.0 service providers (such as Youtube or Facebook) to use upload filters, which would be fundamentally incompatible with the freedom of expression and information guaranteed in the Charter of Fundamental Rights of the European Union (the “Charter”).

The Court has found that Article 17 includes necessary safeguards to ensure that that it is compatible with the freedom of expression and information, but has also stated that certain filtering systems that do not distinguish between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications, would be incompatible with the right to freedom of expression and information, and that Member States, when transposing Article 17 of the Directive, must act on the basis of an interpretation of that provision which allows a fair balance to be struck between the various fundamental rights protected by the Charter.

Click HERE to access the judgement.

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[Photo by: Kane Reinholdtsen, available at unsplash.com]