Balancing Article 17 CDSMD and the Freedom of Expression

Abstract

Accompanied by massive protests driven by concerns about the introduction of upload filters, Art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSMD) came into force in 2019. Since then, a lot has happened: Poland filed an action for annulment, whose ruling was announced by the CJEU on 26 April 2022, Member States delivered transpositions with diverging approaches, and a political agreement on the Digital Services Act, which contains numerous regulations that are potentially also applicable to online platforms as addressees of Art. 17 CDSMD, was reached on 23 April 2022. With all these regulations, the question remains open as to how it can be ensured that Art. 17 CDSMD is compatible with the fundamental right to freedom of expression and information, enshrined in Art. 11 of the Charter of Fundamental Rights. In order to answer this question, the origin of Art. 17 CDSMD and its ratio, its liability mechanism and its impact on the fundamental right will first be examined. In a further step, the safeguards laid down in Art. 17 CDSMD are analysed and the effects of the current ruling on national implementations are discussed. Finally, the focus is on the German approach, which contains farther-reaching ex ante safeguards and is considered as a model for further implementations, especially after the judgement of the CJEU. It is concluded that the developments since the adoption of Art. 17 CDSMD overall strengthen the freedom of expression and information. In order to ensure effective protection of this fundamental right, however, it is necessary to define when content is to be regarded as manifestly infringing and can thus be blocked ex ante according to the recent judgement. Determining this, should not be left to the OCSSPs. The German implementation offers a first step in this regard but is also confronted with doubts about its compatibility. This article takes the recent case law, national and EU legislation and offers a timely contribution to the debate on the compatibility of Art. 17 CDSMD with the fundamental right to freedom of expression and information.