The European Court of Justice has rejected a complaint against the use of upload filters: The use of the filters does not violate fundamental rights and freedom of expression is sufficiently protected. The lawsuit had been filed by Poland.
Litigation related to freedom of expression and information
In its lawsuit against the use of the controversial upload filters, Poland argued that their use could lead to restrictions on freedom of expression and information. The European Court of Justice did not follow this line of argument. In its ruling, the Court found that the use of upload filters could indeed lead to restrictions on freedom of expression and information; however, the relevant directive provides sufficient precautions to prevent excessive interference with these fundamental rights.
The court further acknowledged that, in practice, many providers were forced by the directive to rely on automatic upload filters. The directive in question requires service providers that allow users to upload to perform content checks before publishing the uploads, in order to prevent the upload of prohibited materials. The court considers it evident that this can only be done – depending on the volume of regular uploads – by means of automatic upload filters.
Parodies and Co should remain possible
Critics of such a regulation, which de facto forces Facebook and Co to use upload filters, argued that this would lead to mass surveillance and furthermore make it impossible to use copyrighted materials in the sense of parodies and satires – which would also make social criticism and political statements more difficult. In its ruling, the European Court of Justice made it clear that such use of protected material must remain possible. In this context, the ruling also pointed out that filtering systems must be able to clearly distinguish between permitted and unpermitted use. If a system also blocked permitted content, this inadmissibly violated the freedom of opinion and information. The permissibility of upload filters and their compatibility with fundamental rights is therefore not a given per se, but depends on the functionality of the systems. Ensuring such a balance, he said, is the task of the EU member states.
German regulation probably permissible
In Germany, the directive’s requirements have already been in use since August 17, 2021. Since then, major platforms can be held responsible for content uploaded by users. Accordingly, they are obliged to conclude licenses for the use of protected material that is present on their sites to a not merely minor extent. They must also block or remove protected material for which they do not have a license.
The German regulation differs from those of other EU countries in that it is only possible to block certain content after a complaints procedure has been completed. This regulation applies to all content that consists of no more than 50 percent protected third-party content and contains such content only to a minor extent. A small amount is defined as 15 seconds of a film, 15 seconds of a sound recording, 160 characters of text and up to 125 kilobytes of a photo or graphic. The length rule does not apply to caricatures, parodies and pastiches, although here too no more than 50 percent of the work may consist of third-party content.
The special regulation is primarily aimed at preventing the preventive suppression of even permissible uses. Nevertheless, a fully automated monitoring of all uploaded content is also carried out in Germany. However, according to the ECJ’s ruling, such mass monitoring is not legally objectionable.