Recently the AG Saugmandsgaard Øe has issued his opinion in the YouTube/Cyando case which is not legally binding for the CJEU but nevertheless sheds some light on the interpretation of EU law. He emphasised that online platforms in principle do not perform an act of “communication to the public” in line with Art. 3(1) of the InfoSoc Directive (for more on this topic see here) but that they are merely intermediaries that facilitate the communication of the users who are primarily responsible for the act. The InfoSoc Directive does not establish a secondary liability of the platforms. Moreover, Art. 14 of the Directive on the electronic commerce establishes that online platforms are not liable for content stored upon the user’s request, under the condition that the provider does not have actual knowledge of the illegal activity, or if it becomes aware of such activity, it acts expeditiously to remove or to disable access to the information (the so-called “safe harbour” provision). The platform thus holds an obligation to carefully examine all the facts and circumstances of which it becomes aware in the context of notifications of specific illegal activities, something which cannot be substituted by an obligation to investigate facts and circumstances in a general and active manner. In the opinion of the AG this tries to prevent the platforms dealing with complex legal issues and becoming judges of online legality. The over-removal of content without assessing the relevant contextual circumstances could jeopardise freedom of expression.

The AG thus concluded that, under current EU law, online platforms such as YouTube cannot be held directly responsible for illegal content uploaded by its users. The new DSM Directive, which does not apply to the dispute in question and which Member States will have to implement into national law by 7 June 2021 at the latest, will change this liability regime. Namely, Article 17 stipulates that the platforms will have to obtain permission from the rights holders to upload protected works, otherwise they will be liable for copyright infringement. In practice, this means that platforms will have to set up filters to remove infringing content if they will want to avoid liability. This may lead to excessive removal of content, which is what the AG is concerned about in its Opinion. We will soon see how the potential conflict with freedom of expression will be resolved by the CJEU in the Poland v. Parliament and Council (C-401/19) case.

IPKat in BLACA jointly organised a webinar regarding the AG Opinion in YouTube/Cyando where Eleonora Rosati, Julia Reda and Lauri Rechardt presented their views on the case. You can access the recording of the webinar here.