CJEU delivers landmark ruling on liability of Internet platforms

by on 22. June 2021

The European Court of Justice (CJEU) published its long-awaited decision on the responsibility of internet platforms on 22 June 2021.

The facts
Subject matter of the proceedings was the video-sharing platform YouTube and the share-hosting platform Uploaded. The CJEU joined two reference proceedings of the German Federal Court of Justice for a joint decision:

In the dispute underlying the first case (C-682/18), a music producer is taking action against YouTube for the unauthorised publication of sound recordings and concert clips on YouTube.

In the dispute underlying the second case (C-683/18), a science publisher is taking action against the operator of the share-hosting platform Uploaded for e-books that could be accessed illegally on Uploaded.

The German Federal Court of Justice, which is hearing the two cases, referred a number of questions to the Court for a preliminary ruling so that the latter can provide clarification on, inter alia, the liability of the operators of online platforms as regards copyright-protected works illegally posted online on such platforms by platform users.

The decision
The following main points on the liability of internet platforms can be taken from the reasons:

In principle, the operator of a platform does not make any communication to the public unless the platform fulfills certain aspects leading to its own action in full knowledge of the consequences of its conduct and thus to its own communication to the public. The relevant aspects in this respect include in particular

  • the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, and
  • the circumstance that that operator participates in selecting protected content illegally communicated to the public,
  • that it provides tools on its platform specifically intended for the illegal sharing of such content or
  • that it knowingly promotes such sharing, which may be attested by the fact that that operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform.

Whether these criteria are met in the cases of YouTube and Uploaded is a matter for the national court to decide, but the CJEU provides some guidance for the cases presented. Accordingly, the CJEU sees the responsibility of the platforms at issue as follows:

  •  YouTube’s liability is rather to be rejected, as it is not involved in the posting and selection of content. The process is automated without viewing or monitoring. Terms of use/community rules do not allow copyright infringement. YouTube also takes comprehensive technical measures in order to prevent copyright infringements (e.g. Content ID). In particular, YouTube’s business model is not built primarily on unauthorized sharing of copyright protected content.
  • For Uploaded/Cyando, the CJEU seems to rather indicate liability. It is true that here, too, there is no creation, selection, viewing or checking of content by the operator. Also, copyright infringements are prohibited and the users alone decide whether the individual download-link is shared (and thus whether the content is published at all). However, a very high proportion of infringing content or the inducement of users to share infringing content would lead to intentional conduct with regard to the unlawful availability of the content and thus to public communication by the operators themselves.

Advice for the practice
The Court has examined the platforms’ liability under the set of rules, applicable at the material time, under Directive 2001/29 on copyright, Directive2000/31 on electronic commerce, and Directive 2004/48 on the enforcement of copyright. The questions referred do not concern the set of rules established by Article 17 Directive 2019/790 relating to copyright and related rights in the Digital Single Market, which came into force subsequently and includes an explicit copyright responsibility for Online Content Sharing Service Provider and the possibility to escape such liability by taking certain compliance measures. Article 17 of Directive 2019/790 has been implemented in Germany in the Copyright Services Providers Act (UrhDaG) since 7 June 2021, which will enter into force on 1 August 2021.

However, the CJEU’s case law is relevant for all infringements that were established under the former legal situation and will also be relevant in the future for all platforms which do not fall under the definition of Online Content Sharing Service Provider under Article 17 or under UrhDaG.

You can find the complete reasons for the judgement here.