Overblocking Content: Article 17 CDSM and Platform User Consequences

by Kanerva Jalas

Regulation of content by Information Service Providers (ISPs) used to be solely regulated under Directive 2000/31/EC on electronic commerce, which includes that there is no general obligation for ISPs to monitor their stored or transmitted information nor to seek information which would indicate illegal activity. Furthermore, three situations exist where, if ISPs fulfil certain conditions, they are not to be held liable: mere conduit, caching and hosting. According to these provisions, where ISPs transmit information and are not the originators for that data, they are not responsible for its content. The e-commerce Directive also addresses illegal content which has been stored by the request of the ISPs users: there is no liability where the ISP was not aware of the illegality of the content; if they did, no liability ensues if there were immediate action to remove the content. The e-commerce Directive was enacted to suit the digital societies in the European Union (EU) at the time, resulting in interpretative concerns through the development of new platforms such as social media and platform-based third party sellers. The rise of Artificial Intelligence (AI) for platform content filtering has raised the need for new legislation in the EU: in 2019 the legislative branch adopted Directive 2019/790 on copyright and related rights in the digital single market (CDSM), with the aim to address technological advancements (e.g. social media and content platforms) since enactment of the e-commerce Directive. As a result, some platforms conducting e.g. hosting are still governed by e-commerce Directive, while platforms focusing on sharing or uploading content are subjected to the CDSM.

The liability regime under CDSM is applicable to online content-sharing service providers (CSSP), defined as platforms which have as one of their main purposes to ‘store and give the public access to large amounts of copyright protected works’. Additionally, the providers must offer such service for monetary purposes. Content providers such as open source development platforms, educational repositories and non-profit encyclopaedias do not fall under the definition of a CSSP. The new Directive imposes an obligation for providers which qualify as CSSPs to have a more active role in ensuring the legality of the content uploaded on their platforms. The new approach comes clear from Article 17 of the Directive which contains an extensive framework of rules included in 10 subsections. First, it is the responsibility of the CSSPs to obtain authorisation for the content which is uploaded on their platform. Where this is not the case, EU Member States must hold CSSPs liable directly where it has made copyright protected works available to the public without authorisation unless the provider is able to demonstrate that it has first, made ‘best efforts’ to acquire authorisation from the author of the creation; second, it has acted accordingly with ‘high industry standards of professional diligence’ and has made best efforts to make sure that the unauthorised works are made unavailable, and third, it has acted fast after receiving notifications from the owner of the rights to the works to remove the content from the platform followed with best efforts to make sure such uploads would be prevented in the future. This assessment includes taking into account i) the size of the works, the type of teh works and the demographic, and ii) the means which the provider has adopted in achieving these aims. The principle of proportionality is considered. Start-ups which have been public for less than three years or where their annual turnover is less than 10 million euros a year are exempted from following these requirements. A fundamental notion is enshrined in ARticle 17 (8) CDSM, which states that these requirements imposed on CSSPs must not lead to the existence of a general monitoring obligation, which would require providers to take continuous action to oversee all content uploaded on their platform. Finally, in light of the principle of proportionality, the Member States must make sure that there are effective complaint mechanisms in place for the users whose content has been taken down as a result of these requirements, or where there is a dispute regarding the removal of content uploaded by users.

Despite OCSSPs being required to provide effective redress mechanisms for users, concerns have arisen regarding the consequences that such rules will lead to in practice: in 2019, Poland brought forward a case against the Directive arguing that the rules of the instrument infringe on the fundamental right of freedom of expression and information enshrined in article 11 of the Charter. This ground was emphasised by bringing attention to the situation where CSSPs would in practise be required out general monitoring of all content despite Article 17 (8) not allowing for such. The claimant argued that a general monitoring obligation will result in taking down non-infringing content which will lead to a compromised right of freedom of expression. The Court of Justice of the European Union (CJEU) dismissed the claim on the grounds that the limitations on the right of freedom of expression are lawful within the limits of Article 52 Charter, which demands such limitations to be imposed by law. Concerns regarding the issue have also been highlighted by CSSPs themselves as well as users of the providers: in December 2021, content platform YouTube published their ‘copyright transparency report’ which includes enforcement actions regarding content takedowns on the platforms from January to June 2021. In order to comply with the requirements set by CDSM Directive, YouTube uses an algorithm (Content ID) to identify and take down copyright protected content. From this report, it was found that 60 percent of the cases where the user disputed their content being taken down were decided in favour of that user. Such an outcome is concerning: if over a half of the disputes which were filed were found to be baseless, the real number of faulty takedowns can be a large amount that goes unreported.

The copyright report highlights an issue which can be viewed as concerning: while the new CDSM Directive does not directly impose a general monitoring obligation, on the basis of YouTube’s copyright report it can be seen that CSSPs are willing to set automatic algorithms for the task anyway, under the fear of being held liable. In the future, CSSPs copyright reports will be helpful in assessing the impact that the Directive has on users, providers and our rights.

Sources:

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) [2000] OJ L178/01.

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC [2019] OJ L130/92.

Charter of Fundamental Rights of the European Union [2000] OJ C364/01.

Case C-401/19 Poland v Parliament and the Council [2019]

M Rojszczak, ‘Online content filtering in EU law - A coherent framework or jigsaw puzzle?’ (2022) 47 Computer Law and Security Review 1.

T Spoerri, ‘On Upload-Filters and Other Competitive Advantages for Big Tech Companies under Article 17 of the Directive on Copyright in the Digital Single Market (2019) 10 JIPITEC 173.

Y Yan, ‘Assessing the Impact of Article 17 of the DSM Directive on Online Service Providers and Fundamental RIghts’ (2020) The University of Edinburgh.

J P Quantais, ‘Article 17 survives, but freedom of expression safeguards are key: C-401/19 - Poland v Parliament and Council’, Kluwer Copyright Blog, 26 April 2022:

https://copyrightblog.kluweriplaw.com/2022/04/26/article-17-survives-but-freedom-of-expression-safeguards-are-key-c-401-19-poland-v-parliament-and-council/, accessed on the 22nd of February 2023

P Keller, ‘YouTube Copyright Transparency Report: Overblocking is real’, Kluwer Copyright Blog, 9 December 2021:

https://copyrightblog.kluweriplaw.com/2021/12/09/youtube-copyright-transparency-report-overblocking-is-real/, accessed on the 22nd of February 2023.