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Article 17: A Messy Affair

Source: Shutterstock / weedezign

By Zsuzsa Detrekői

Newly introduced EU legal provisions may shake the world of video-sharing platforms to the ground. However, their implementation is sort of a mess.

For many years, if, for example, the movie Die Hard was shared by a user on a video-sharing platform, the service provider escaped liability if it removed the movie at the official request of 20th Century Studios, its distributor. However, this may change soon.

After a long-lasting dispute, in March 2019 the European Union (EU) accepted the amended copyright directive with its famed Article 17.

This article defines video-sharing sites as “online content-sharing service providers” and introduces a new legal regime for the general immunity provided to intermediaries by the e-commerce directive. Intermediaries, including hosting providers, is how video-sharing sites were formerly qualified.

What Changes With Article 17?

Article 17 makes service providers, and thus video-sharing sites, directly liable for the acts of their users. Prior to the amendment of the copyright directive, service providers had immunity to liability for stored illegal content that was uploaded by users if these providers fulfilled the so-called “notice and take down procedure” by removing incriminated content upon notice, as in the Die Hard example.

Now, Article 17 states that service providers perform an act of communication to the public (or an act of making content available to the public) and therefore must get a license from right-holders to use content.

Even without a license, the service provider may still not be liable if it fulfills a three-step compliance mechanism, demonstrating that it did its best to:

a) Obtain an authorization; or

b) Ensure, by using filtering software, availability of specific works for which the right-holders have provided relevant and necessary information; or

c) Upon receiving a sufficiently substantiated notice from the right-holders, disable access to certain works or remove them from their websites.

Meanwhile, in 2020 two public consultations were launched by the European Union. One is related to the planned Commission Guidance to Article 17, which is a set of non-binding instructions that are supposedly going to help legislators implement the provisions introduced by the article. As part of this consultation, stakeholders were invited to give their opinion and interpretation of the Article 17. The other consultation, which had an early September deadline, was related to the upcoming Digital Services Act that revisits the entire intermediary liability system.

The Court Steps In

In July 2020 Henrik Saugmandsgaard Øe, Advocate General of the Court of Justice of the European Union (CJEU) during the procedures around joined cases Frank Peterson v. Google and Elsevier v. Cyando expressed his opinion about the liability borne by video-sharing sites.

He stressed that the cases were lodged with the CJEU before Article 17 was adopted. The advocate proposed that “the Court rule that platform operators such as YouTube and Cyando do not, in principle, carry out acts of ‘communication to the public’ within the meaning of Article 3 of Directive 2001/29.” He added that they are therefore not “directly liable for an infringement of that provision when their users illegally upload protected works.”

Mr Saugmandsgaard Øe also emphasized that

“the fundamental rights of users of those platforms cannot be ignored.”

These fundamental rights include freedom of expression and information, which “encompasses freedom to hold opinions and to receive and impart information and ideas.” The Advocate General believes that, by “requiring online platform operators to check, in a general and abstract manner, all the files which their users intend to publish before they are uploaded in search of any copyright infringement would introduce a serious risk of undermining these different fundamental rights.”

Because of the volume of hosted content, “it would be impossible to carry out such a check in advance manually and, furthermore,

the risk in terms of liability for those operators would be excessive,

he said, implying that “the smallest of them would be at risk of not surviving that liability,” while larger ones with sufficient resources “would be forced to carry out general filtering of their users’ content, without judicial review.” That means that they would end up removing too much content.

What’s Next?

Soon after the revised directive was adopted, Poland requested the CJEU to annul provisions in the Article 17 (namely 4.b and c) that referred to using a filtering software and removing content upon receiving notice arguing that requiring service providers to implement upload filters (because there is no other effective means to prevent uploading of illegal content) would lead to censorship and limit the freedom of information of the users of online platforms.

The defendants in the case (those defending the Article 17) are the European Parliament and the Council. France and Spain also intervened in the case on the side of the defendants.

Despite being on the same side, in a CJEU hearing held on 10 November 2020, the Parliament and Council used different argumentation than France and Spain. The former stated that Article 17 contains enough internal safeguards to prevent infringement of fundamental rights whereas France and Spain argued that limitation of fundamental rights are justified by the objective of Article 17.

Member States are expected to implement Article 17 until July 2021. No EU country has adopted it thus far and only half a dozen legal proposals are on their way.

Attorney General Saugmandsgaard Øe will publish his opinion in the Poland case presumably in April 2021, six weeks before the deadline for implementation. This means that Member States will be forced to implement Article 17 before knowing the court’s opinion about the validity of the Article. In the worst-case scenario, the Court can annul the Article shortly after its implementation.

Hopefully there will be some legal clarity soon. Otherwise, small video-sharing platforms will likely be forced to shut down as they will lack the resources to implement the newly introduced provisions, let alone to swim through legal uncertainty.

Zsuzsa Detrekői is a TMT lawyer and the former general counsel of a major Hungarian online content provider. Currently she is legal counsel of a major ISP in Hungary. She also provides legal support for the Association of Hungarian Content Providers. Her research area is online content and internet related regulations about what she wrote her thesis on and achieved PhD in 2016. She is a Fellow at the Center for Media, Data and Society.



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