Poland is challenging in the European Court of Justice (EUCJ) the legality of article 17 of the copyright directive, which was voted in March 2019 by the European Parliament [4]. More specifically, the Member State is arguing that the provisions imposing upload filters are contrary to article 11 of the Charter of Fundamental Rights of the European Union [5]. In other words, that the provisions disproportionately infringe on freedom of speech. A stance that April has regularly defended, along with many other organizations [6].
As noted by Glyn Moody in TechDirt [7], Poland brought this action before the EUCJ on May 24, 2019, against the European Parliament and Council of the European Union, which adopted the directive (2019/790) [8]. The case, case C-401/19 [9], was published in the Official Journal of the European Union on August 12. Poland asks that the court annul article 17 subsections 4 (b) and 4 (c) as they de facto impose intermediaries to automatically filter user uploads on their platforms and, in the event that the EUCJ should decide it is not possible to excise just those parts, that article 17 be annulled in its entirety.
The plea smartly circumvents the usual claim made by proponents of article 17 that its wording does not impose upload filters. It points out that the risks of being held liable will push platforms "to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms."
"The Republic of Poland claims specifically that
the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information (point (b) of Article 17(4) of Directive 2019/790)
and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice (point (c), in fine, of Article 17(4) of Directive 2019/790)
make it necessary for the service providers — in order to avoid liability — to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary."
The other Member States as well as the European Commission now have six weeks to file an "application to intervene", which allows them in turn to submit any comments they might have. There is no hope that France, a hard-line supporter of the text, will intervene in favor of the Polish claim, but one can hope that other Member States will support this salutary action.
The procedure as a whole might be long from this point onward. Member States have started the process of transposing the directive into national law, and this Polish claim pushes us to keep a fighting spirit. In France, article 17 will be transposed through the bill reforming public broadcasting (projet de loi de réforme de l'audiovisuel public). Parliamentary debates should start at the end of October 2019 at the latest, with the goal of having the law enacted at the beginning of 2020, reports Next Inpact (in French) [10]. April will remain fully committed to fighting this threat to our freedoms.