The so-called "upload filter" from the Copyright Directive does not violate fundamental rights. It provides sufficient guarantees to protect freedom of expression and information. So ruled the Court of Justice of the EU on 26 April 2022.

Shortly after the adoption of the Copyright Directive, Poland filed a complaint about Article 17. This article requires online platforms that want to avoid liability to apply automatic filtering software, screening all user content for potential copyright infringement before content is posted. According to Poland, this kind of monitoring violates users' freedom of expression and information. This is because such software not only ensures that infringing content is blocked, but also that non-infringing content can be rejected without a proper reason. This slows down the flow of information, with the risk that content loses its value and importance.

The Court finds that while article 17 restricts the freedom of expression and information, it also creates a proper balance between fundamental rights and copyright protection. Thus, on the one hand, liability of online platforms is necessary for the protection of copyrights. On the other hand, the article leaves room for online platforms to determine for themselves what measures are necessary to prevent infringing content from being posted - provided that a filtering mechanism distinguishes between lawful and unlawful content, so that non-infringing content is not rejected without a proper ground. Parodies, citations and other legitimate uses of copyright will thus remain permitted. Online platforms must offer their users sufficient opportunities to take action against the taking offline of their content. As long as this is complied with, article 17 offers sufficient guarantees for the protection of fundamental rights, according to the Court.

Luna Snellenberg

12 July 2022