The Liability system of Art. 17 DSMD and national implementation - contravening prohibition of general monitoring duties?

• Author: Gerald Spindler
• Position: Holder of the chair of Civil Law, Commercial and Economic Law, Comparative Law, Multimedia- and Telecommunication Law and head of the Institute for Business Law at the University of Göttingen, Germany
• Pages: 344-374

2020

Gerald Spindler

344

3

The Liability system of Art. 17 DSMD

and national implementation

Contravening prohibition of general monitoring duties?

by Gerald Spindler*

© 2019 Gerald Spindler

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Ger ald Spindler, The Liability system of Art. 17 DSMD and national implemen tation – contravening

prohibition of general moni toring duties? 10 (2019) JIPITEC 344 para 1.

by the CJEU and the obligations of providers are scru-

tinized. Moreover, possible options for national leg-

islators in order to safeguard fundamental rights of

users concerning freedom of speech (and copyright

limitations) are discussed.

Abstract: The article deals with the complex liability

system of Art. 17 DSM Directive, the famous “upload

filter provision” in copyright law concerning content

sharing platforms. The conflict between the prohi-

bition of general monitoring obligations for platform

providers derived from European fundamental rights

Keywords: Copyright liability; Service Provider; freedom of speech; copyright limitations; Upload-Filter; general

monitoring obligations; European fundamental rights; flagging content; Art. 17 Digital Single Market

Directive; user generated content; extended collective licenses

A. Introduction

1

Scarcely any EU directive has attracted so much

public attention as the new DSM-Directive,1 which

introduces obligations for service providers who

enable sharing of user-generated content, such as

* Prof. Dr. Gerald Spindler is holder of the chair of Civil

Law, Commercial and Economic Law, Comparative Law,

Multimedia- and Telecommunication Law and head of the

Institute for Business Law at the University of Göttingen,

Germany.

1 Directive (EU) 2019/790 of the European Parliament and of

the Council of 17 April 2019 on copyright and related rights

in the Digital Single Market and amending Directives 96/9/

EC and 2001/29/EC, OJ L 130, p. 92 ss. of 17.5.2019.

YouTube. The ght between rightholders on one

side and the internet community on the other,

fostered by large companies such as YouTube,

even ended up in public manifestations against one

article of the DSMD, Art. 17 (previously Art. 13). This

article deals with obligations of service providers

to control content on their platform, thus forming

an exception of the safe harbor privileges for

service providers enshrined in Art. 14 E-Commerce

Directive.2 It is obvious that such a control could

hamper rights of freedom of speech as well as access

to content – which is the legal ground for the claim

led by Poland against the DSMD and which lies

2 Directive 2000/31/EC of the European Parliament and of the

Council of 8 June 2000 on certain legal aspects of information

society services, in particular electronic commerce, in the

Internal Market, OJ L 178 p. 1 ss. of 17.7.2000.

The Liability system of Art. 17 DSMD and national implementation

2020

345 345

3

at the core of the following article. I will initially

shortly describe the existing system of copyright

liability for intermediaries (B) before turning to the

fundaments of Art. 17 DSMD (C.1) whose structure

is crucial for the constitutional analysis (C.3), in

particular concerning the prohibition of general

monitoring duties. Even if one does not follow the

constitutional arguments, they have to be considered

when implementing Art. 17 DSMD (D) which unfolded

concerning user rights etc. Finally, we will discuss

international private law implications (E), as well

as the legal situation for those providers who are

exempted from Art. 17 DSMD (F).

B. The Previous Liability System

for Intermediaries

2

Originally, service providers – which also include

operators of social networks or user-generated

content platforms like YouTube – were covered

without further question by the liability privilege

of Art. 14 E-Commerce Directive; meaning that they

could only be held liable after acquiring knowledge of

any illegal content, or only if, “as regards claims for

damages, (he) is not aware of facts or circumstances

from which the illegal activity or information is

apparent” (Art. 14 (1) sentence 1 (a) ECD) – which

the courts applied to YouTube accordingly, freeing

it from liability.

3

However, in the L’Oréal decision, the

CJEU made it clear that this privilege applies only

to passive, neutral service providers, not to those

who actively support users (e.g., through providing

assistance and optimising the presentation of

offers).4

3

From the beginning, injunctive reliefs on the grounds

of liability for interference (“Stoererhaftung”) have

remained unaffected by the liability privilege -

obligations which have in detail been formed by the

jurisprudence in numerous decisions, but cannot be

described here in detail. At its core, a host provider is

liable as an interferer (“Störer”) after notication by

the injured party regarding the future (!) omission of

infringing rights if he violates reasonable inspection

and control obligations (e.g. does not prevent that

new content of the same kind is loaded onto the

server).5 It should be noted, however, that even

3 Higher Regional Court Hamburg MMR 2016, 269; Higher

Regional Court Munich CR 2016, 750.

4 CJEU Case C-324/09 L`Oreal EU:C:2011:474, para 116.

5 Further details in Spindler in Spindler/Schmitz (eds),

Telemediengesetz, (2nd edn, CH Beck 2018), § 7 TMG paras

41 ff. with further proofs; see also Nico Gielen and Marten

Tiessen, “Die neue Plattformhaftung nach der Richtlinie

über das Urheberrecht im digitalen Binnenmarkt” [2019]

from a copyright perspective (up to now), the service

provider itself does not commit any infringement in

the sense that he is the offender or the infringer of

an exploitation right of a copyright holder; at most

he was a negligent side-perpetrator and therefore

(apart from the liability for interference) could

benet from the liability privilege according to Art.

14 E-Commerce Directive.

4

However, this assessment changed with the

development in CJEU case law on the right of making

available to the public, Art. 3 a) InfoSoc Directive.6

With the decisions in GS Media, Filmspeler und Pirate

Bay7 the CJEU already took the act of recovery far

into the eld of aid and its own actions.

8

Specically,

it concerned hyperlinking (GS Media), a platform

with piracy recommendations without hosting

content (Pirate Bay), or hardware products with pre-

set software that led to piracy platforms.

5

Whether the CJEU in the pending YouTube-

proceeding

9

would decide in the same manner is not

agreed upon, since in this case – unlike Filmspeler

and Pirate Bay – a targeted promotion of infringing

acts of property rights by third parties cannot be

concluded.10 Art. 17 (1) DSMD however, can be seen

EuZW 639, 640 ff.

6 Directive 2001/29/EC of the European Parliament and of

the Council of 22 May 2001 on the harmonisation of certain

aspects of copyright and related rights in the information

society, OJ L 167/10 ff.

7 CJEU Case C-160/15 GS Media BV v Sanoma Media Netherlands

EU:C:2016:644, GRUR 2016, 1152 with comments by Ohly;

CJEU Case C-527/15 Filmspeler EU:C:2017:300, GRUR 2017,

610 with comments by Neubauer/Soppe; CJEU Case C-610/15

The Pirate Bay EU:C:2017:456, GRUR 2017, 790; Matthias

Leistner, “Die ‘The Pirate Bay’-Entscheidung des EuGH: ein

Gerichtshof als Ersatzgesetzgeber” [2017] GRUR 755.

8 Rightly critical Leistner, (n 7) 755; Matthias Leistner,

“Reformbedarf im materiellen Urheberrecht: Online-

Plattformen und Aggregatoren” [2016] ZUM 580, 583;

Matthias Leistner, “Anmerkung zu EuGH, Urteil vom 8.

September 2016 – EUGH C-160/15” [2016] ZUM 980; CJEU

Case C-160/15 GS Media BV v Sanoma Media Netherlands

EU:C:2016:644, GRUR 2016, 1152, 1155 with comments by

Ohly who speaks of a “substitute legislator“.

9 See the pending proceedings: Case C-682/18 YouTube and

Case C-683/18 Elsevier; to the order for reference: Federal

Court of Justice resolution of 13 September 2018 – I ZR

140/15, CR 2019, 100 ff.

10 Also the submitting Federal Court of Justice does not see

an individual illegal action by platforms such as YouTube

because of lack of knowledge and automation as given;

Federal Court of Justice CR 2019, 100 para 30 ff. with