EU Court Opinion Sets Limits to Use of Upload Filters in New EU Copyright Rules

BY Heather Greenfield
July 15, 2021

Brussels, BELGIUM  — The EU top court’s Advocate General, Henrik Saugmandsgaard Øe, today provided his opinion on the Polish government’s request to annul the controversial Article 17 in the new EU Copyright rules.

Poland requested that the Court of Justice of the EU (CJEU) annul Article 17 due to infringement of the right to freedom of expression and information guaranteed by the Charter of Fundamental Rights of the EU.

Poland had argued that the required use of automatic filters would undermine the right to freedom of expression and access to information and wouldn’t be proportional and necessary.

In his opinion the Saugmandsgaard Øe stated that Article 17 contains sufficient safeguards to lawfully limit the exercise of the right to freedom of expression. Nevertheless, in order to minimise the risk of ‘over-blocking’ and ensure compliance with the right to freedom of expression, an intermediary may only be required to filter information the unlawfulness of which is obvious from the outset, that is to say, it is manifest, without the need for contextualisation.

The following can be attributed to CCIA Senior Manager, Alex Maglione:

“We appreciate that the opinion sheds more light on the delicate balance between the protection of copyrighted material and the protection of fundamental rights. It importantly reaffirms that intermediary providers cannot be turned into judges of online legality.”

“We hope that EU states will ensure a fair and proportionate balance of rights, including sufficient safeguards to protect users, in their implementation of the EU copyright rules.”

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