Article 17 of the Directive on Copyright in the Digital Single Market: A Fundamental Rights Assessment

Abstract

Article 17 of the Directive on Copyright in the Digital Single Market (CDSMD) was one of the most contested provisions in the legislative process of the EU copyright reform. Its adoption was accompanied by widespread protests by citizens, as well as criticism from academics and fundamental rights advocates. The Republic of Poland has brought an action for annulment of certain provisions of Article 17 CDSMD before the CJEU (Case C-401/19), arguing that provisions of Article 17 violate the fundamental right to freedom of expression and information. The case before the Court has far-reaching implications beyond the realm of copyright law, as similar sector-specific legislation is being considered in other areas, and the European Commission is in the process of drafting horizontal legislation on content moderation. While Poland has only raised concerns regarding the violation of the fundamental right to freedom of expression and information, we point out that the Court is entitled to a comprehensive assessment of the provisions in question, balancing all fundamental rights concerned. This paper analyses recent European case law to demonstrate that Article 17 CDSMD fails to strike a fair balance between the affected fundamental rights, including the platforms' freedom to conduct a business and the users' rights to privacy and data protection. We argue that platforms within the scope of the CDSMD are de facto obliged to employ content recognition technologies (upload filters). We show that the interpretation of the ban on general monitoring found in the literature, according to which upload filters as foreseen by Article 17 CDSMD are compatible with the ban on general monitoring, are incompatible with the CJEU case law. Article 17 CDSMD not only constitutes a prohibited general monitoring obligation but will invariably lead to ex-ante restrictions on legal forms of expression, a particularly serious interference with the right to freedom of expression and information that has consistently been rejected by the CJEU and the ECtHR. Drawing on the cases Digital Rights Ireland and Schrems II we demonstrate that Article 17 CDSMD lacks specific provisions to define the scope of fundamental rights restrictions and fails to provide for the necessary minimal safeguards. The legislator also failes to consider the shortcomings of content recognition technologies, underestimated their cost, left the scope of the best efforts obligations placed on platforms entirely unclear, and therefore failes to adequately balance the right to intellectual property on the one hand with the freedom to conduct a business, the right to freedom of expression and information and the right to privacy and data protection on the other.