Platform liability under article 17 of the Digital Single Market Directive (Directive 2019/790), with a specific focus on content filtering

Abstract

Directive (EU) 2019/790 (CDSM Directive) was the culmination of the long-awaited need to reform and modernise copyright legislation in the EU and achieve a truly single digital market. In order to close the reported value gap between profits earned by rightholders and OCCSPs, this highly-controversial Directive endorses a wider definition of the term communication to the public and introduces a new regime of liability for copyright infringement, through Article 17. No longer will online platforms be able to enjoy the rules of safe harbour under Directive 2000/31/EC (E-Commerce Directive) but must instead make ‘best efforts’ to ensure that copyright-protected material is not hosted on their servers. The term ‘best efforts’ strongly indicates a requirement to adopt content filtering tools to monitor all data prior to uploading. However, major concerns persist with regards the use of such technology. This term paper will analyse whether indeed the CDSM Directive mandates the use of content filtering technology and will explore the undefined relationship between content filters and the various fundamental human rights it will seemingly affect, most notably users’ right to freedom of expression and OCSSP’s right to conduct a business. This relationship is made all the more complicated when taking into account the fact that both the CDSM Directive and the E-Commerce Directive prohibit the imposition of a general monitoring obligation, a reality which is perhaps inevitable should content filters be utilised by OCSSPs in general. This dissertation will attempt to suggest recommendations and additional safeguards to be included by Member States when transposing the Directive to ensure full respect for human rights, by focusing on the fact that the Directive should only target commercial-scale infringement and repeat offenders. While the CDSM Directive was borne out of a genuine intention to make the playing field fairer, serious shortcomings exist, and these will also be addressed in the dissertation.