It's On: Details Emerge Of Polish Government's Formal Request For Top EU Court To Throw Out Upload Filters

from the worth-a-try dept

Earlier this year, Techdirt wrote about an intriguing tweet from the account of the Chancellery of the Prime Minister of Poland, which announced: “Tomorrow #Poland brings action against copyright directive to CJEU”. The hashtags for the tweet made clear what Poland was worried about: “#Article13 #Article17“. However, at that time, no details were forthcoming about this potentially important legal move. It was disappointing that nothing more has been heard about this unexpected development since then — until now. A notice on the Official Journal of the European Union includes the following: “Case C-401/19: Action brought on 24 May 2019 — Republic of Poland v European Parliament and Council of the European Union”. The corresponding entry indicates that the Polish government believes that the upload filters required by Article 13/17 represent an “infringement of the right to freedom of expression and information” guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union:

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 [EU Copyright] 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.

Nothing new there, of course — it’s what Techdirt and many others pointed out repeatedly before the Directive was passed. But what is significant is that this time it is the Polish government that is making this statement, and in a complaint to the EU’s highest court, the Court of Justice of the European Union (CJEU). As a previous post explained, some are of the view that the key importance of Poland’s legal action is that it requires the CJEU to consider the questions raised. That will necessarily include whether upload filters are “proportional and necessary” as a response to the uploading of unauthorized copies by members of the public.

As to the remedies, the Polish government ideally wants points (b) and (c) of the following section of Article 13/17 cancelled:

If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, 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; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).

If, however, the CJEU decides it is not possible to excise just those parts, the Polish government has a fallback position: it asks for Article 13/17 to be annulled in its entirely. It’s too early to say whether Poland’s request stands any chance of being granted. But it would certainly be rather fun watching the copyright industry go into meltdown if it saw all its lobbying for upload filters undone at a stroke.

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Comments on “It's On: Details Emerge Of Polish Government's Formal Request For Top EU Court To Throw Out Upload Filters”

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18 Comments
That One Guy (profile) says:

Good luck, you'll probably need it

While having both articles 13 and 17 scrapped entirely would obviously be the best result, with removing the more problematic clauses being a decent second best, I do have to worry about the result here given we’re talking about something copyright related, a subject that tends to turn the minds of otherwise rational people into mush such that the most absurd things can be excused Because Copyright.

It also strikes me that there’s another potential way for the court to dodge doing anything, namely by using the dishonest argument of ‘it doesn’t specifically require filters’ that was trotted out time and time again leading up to the vote, where they could simply use that as an excuse to dismiss and ignore that the practical results of such a demand on platforms does in fact require filters.

That said hopefully the CJEU manages to keep both spines and minds intact and tosses both articles 13 and 17 into the garbage pile where they belong, both for the sake of the public and the ever-so-delightful schadenfreude that would result from such an action.

TFG says:

Re: Good luck, you'll probably need it

Poland seems to have anticipated the "doesn’t specifically require filters" argument. The specific part of the excerpt quoted in the article is a single sentence, I’ll be paraphrasing parts to focus on the points (emphasis added):

The Republic of Poland claims [points b and c in the articles] 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.

Of course the courts may be obtuse about it, but by now the EU parliament have basically already admitted the whole goal was filtering anyway (see some prior TD articles about that), so that argument may not fly based on that. But I expect if someone does try to trot that out, Poland’s going to be all over that, given the way they’ve started things.

Fingers crossed – if this works, we’ll have Poland to thank for yet again putting a hole in systems backed by a German (ENIGMA decryption rested heavily on Polish cryptography cracking work).

Nathan F (profile) says:

It also strikes me that there’s another potential way for the court to dodge doing anything, namely by using the dishonest argument of ‘it doesn’t specifically require filters’ that was trotted out time and time again leading up to the vote, where they could simply use that as an excuse to dismiss and ignore that the practical results of such a demand on platforms does in fact require filters.

If the court actually does come out and say "it doesn’t specifically require filters" then I would continue to offer services without such filter and if anyone tries to call me on it point them to that ruling.

That One Guy (profile) says:

Re: Re:

That… is a very good point, and one I should have caught. If no less than the EU’s highest court were to parrot the idea that ‘it doesn’t require filters’ then it wouldn’t really matter what the politicians and those that owned them wanted with regards to filters, they’d have a wicked time demanding that they be implemented, and without mandatory filters the articles are still a mess but they’d be notably less problematic.

Anonymous Coward says:

the law does not mention upload filter,s ,
it just that it would be impossible for any website to stop
uploads containing music or images owned by ip holders ,
in real time without using filters ,
Especially sites that have millions of users .
And the law would require in practise for polish websites to block
most user upload,s , small websites will not have the money to spend
millions on filters .
So they will likely just block most user uploads of audio and video,
just to avoid getting sued .
I doubt that small websites in poland will have acess to the data
that youtube has on music video,s and audio , millions songs of from record companys .
Polish citizens may have experience of being under a government where
there was no free speech under communist government,s in the past .
Should they give up the concept of free speech for ordinary people
to help old legacy corporations and tv/ record companys ?
There has to be a point where the limits of control and copyright
expansion must be limited .
In favour of freedom of expression .
In 2019 the web is not some niche technology ,
its the primary method where ordinary people communicate ,form communitys ,
and make art and consume it.

Anonymous Anonymous Coward (profile) says:

Re: Re:

Didn’t the enacted law from the EU require each country to implement a local law in conjunction with this edict? If a country doesn’t make such a local law, do they get kicked out of the union? If Poland is successful in this endeavor would that invalidate any local laws that have been implemented?

Scary Devil Monastery (profile) says:

Re: Re: Re:

"Didn’t the enacted law from the EU require each country to implement a local law in conjunction with this edict?"

Yes.

"If a country doesn’t make such a local law, do they get kicked out of the union?"

No. They can challenge the directive by bringing it to the EUCJ, they can request a national exemption…and they can ignore it. If the opt for the third choice people get all whiny and the EU may choose to invoke some form of penalty sanction.

"If Poland is successful in this endeavor would that invalidate any local laws that have been implemented?"

Not directly…but the ruling will most likely mean the articles or the copyright directive itself will have been judged by the EUCJ to be in violation of the EU charter.

And THAT will require member states to abolish those laws.

We’ve seen this happening before when the data retention directive was struck down in bolts of thunder by the EUCJ…and quite a few member state then whined a whole lot about having to rip up their brand new national legislation.

That One Guy (profile) says:

Re: Re:

In the same way that a law requiring a business serving drinks only serve those above a certain again might not specifically require the bar to check ID’s, despite the fact that’s basically the only reasonable way to comply with the law, sure.

The ‘it doesn’t require upload filters’ argument has been thrown out and ripped to shreds before, with the shorthand being that if a platform is supposed to make sure that copyrighted materials aren’t posted, and they have to do this hundreds, thousands, or millions of times per day, the only way to do that is with upload filters.

TFG says:

Re: Re: Re:

And it’s worth noting that that is exactly Poland’s argument. A careful reading of the excerpt shared in the article will show that Poland is saying: "The provisions make it necessary for content providers to filter in order to avoid liability."

Based on that start, I fully expect Poland to argue that filtering is the only feasible method to meet the requirements, regardless of whatever chaff is thrown around about it not requiring filters specifically.

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