European Court: ‘Upload filter not in violation of fundamental rights’

Tech companies that check content before it appears online are allowed to continue to do so. This so-called upload filter does not violate the freedom of expression and free access to information. It also strikes a “fair balance” between the protection of copyrighted material and fundamental freedoms in the EU.

This is evident from a ruling by the European Court of Justice (PDF).

This is what you need to know about the upload filter

Poland had filed a case with the Court. The Member State has difficulty with Article 17 of the Copyright Directive. It states that technology companies must prevent copyrighted material (music, films, ebooks, games, etc.) from being offered and shared online.

To achieve this, most companies use an upload filter. This means that they check in advance what kind of content a user wants to upload and make a judgment on whether this is in violation of the Copyright Directive. According to Poland, this violates freedom of expression and access to information.

Court dismisses objections from Poland

According to the European Court of Justice, this is not the case. The Court is of the opinion that sufficient safeguards have been built into the directive to guarantee freedom of expression. Technology companies are allowed to use automated filtering tools – such as an upload filter – to distinguish between legal and illegal content.

In addition, tech companies are not obliged to pre-check all content: this only applies if there are indications that there may be copyright infringement. If users of a platform are temporarily unable to access specific content, it is because the right holder has filed a complaint. That does not mean that user information is withheld. The Directive also includes safeguards regarding the use of copyrighted material in parodies and satire films.

‘Fair balance’

The Court also says that the upload filter is not one hundred per cent watertight. However, there is a “fair balance” between possible mistakes made by the filter and freedom of expression. The Court points out that Member States must ensure compliance with Article 17.

When transposing this provision into national law, Member States must interpret it in such a way that there is “a fair balance between the different fundamental rights protected by the Charter of Fundamental Rights”.

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