Towards a Virtuous Legal Framework for Content Moderation by Digital Platforms in the EU? The Commission’s Guidance on Article 17 CDSM Directive in the light of the YouTube/Cyando judgement and the AG’s Opinion in C-401/19

The Directive on Copyright in the Digital Single Market (CDSM Directive) might fundamentally change the way works and other subject matter protected by copyright will be used on online platforms. Article 17 of the Directive obliges such platforms, based on information they receive from rightholders, to ensure that copyright infringing uploads made by their users are prevented and/or removed by an internalized procedure over which platform operators exercise control. Important enforcement mechanisms are thereby left to private entities who decide what content can (or cannot) be available on their platforms. More problematic is that it seems that the immense number of uploads can only be managed by automated AI-based filtering technologies incapable of properly distinguishing between lawful and unlawful uses. Such an indiscriminate control of uploads creates a serious danger of (over)blocking perfectly legitimate content which potentially results in significant limitations of fundamental rights such as the right to freedom of expression. At the same time, Article 17 also forbids general monitoring of the content available on platforms and clearly mandates to safeguard user’s rights protected by exceptions and limitations to copyright such as quotations, criticism and review or caricature, parody or pastiche. This obligation of result leads to an unresolvable conflict and creates great difficulties for Member States when implementing the provision in a fundamental rights compatible way. Moreover, the lack of clarity of the provision has led Member States to interpret it in significantly diverging ways, jeopardizing the objective of harmonization behind the Directive. Therefore, the interpretation guidelines by the European Commission foreseen by Article 17(10) to help Member States in their implementation efforts were impatiently awaited, in particular since Article 17 is facing an action for annulment before the Court of Justice of the European Union for potentially violating the right to freedom of expression. The Guidance on Article 17 was finally issued by the Commission in June 2021 after several postponements. Although it provides for some useful clarifications and certain safeguards for users of protected works, it unfortunately does not depart from a system based on monitoring and automated filtering and thus is likely to fail to appropriately protect fundamental rights. The Guidance was followed in quick sequence by two important developments concerning content moderation by platforms: the YouTube and Cyando judgment of the Court of Justice of June 22, 2021 and the Advocate General’s Opinion of July 15, 2021 on the compatibility of Article 17 CDSM with freedom of expression. This article analyses the main additions and proposed interpretation tools that the Guidance brings to platform’s content moderation as mandated by Article 17 CDSM in the light of the recent decisions by the CJEU and the Advocate General’s Opinion. It argues that in order to establish a virtuous content moderation system and to help Member States to implementing Article 17 in a balanced way, it would have been essential to address the more fundamental concerns when it comes to Article 17, and in particular the fact that privately operated algorithmic tools and not independent assessors based on copyright law’s equilibrium are deciding what content should be available online and to take into account the inherent limits and flaws of technology. The Advocate General in its Opinion clearly acknowledged this problem with regard to freedom of expression, which he sees impacted by Article 17, but considers that a fundamental rights-compliant reading and the implementation of safeguards at national level can lead to a proportionate and legitimate restriction of that freedom as mandated by Article 52 of the EU Charter of Fundamental Rights. Article 17’s compatibility with freedom of expression thus seems extremely fragile as it is entirely conditional on how the provision will be implemented by Member States and on the safeguards they will provide against overblocking of legitimate uses. In any case, the Commission’s Guidance read in the light of the recent decisions in the YouTube and Cyando cases and complemented by the rich and thoroughly argued Opinion of the AG, design a content moderation regime that tries to be respectful of the balances inherent in copyright law and to minimize its negative impacts. We conclude however that in the absence of a truly independent arbiter between the interests of users, platforms and rightholders and without a future close monitoring of the effect of the provision on legitimate uses, Article 17 of the Directive and/ or its implementation in national copyright law is likely to continue to be problematic in terms of European fundamental rights and the basic principles of EU law.