Online platform operators should not be directly liable for illegal uploads by users (currently)

On 16 July 2020, Advocate General (AG) Saugmandsgaard Øe provided his anticipated opinion concerning the liability for online platform operators and the current scope of communication to the public.

Background

This is a referral to the CJEU by Germany's Federal Court of Justice in the joined cases of LF v Google LLC, YouTube & Ors (C-682/18) and Elsevier v Cyando (C-683/18) (There was also a Press Release published).

In the YouTube case, Music producer, Frank Peterson is seeking damages from YouTube in respect of videos of singer Sarah Brightman that were available on YouTube and Google, without his authorisation. The second case concerns proceedings brought by the publishing group, Elsevier, regarding unlawful material uploaded to Cyando's platform 'Uploaded'.

Both cases involve the political and contentious balancing exercise between the interests of intermediaries and those of rightsholders. The AG expressly recognised the difficulties faced by rightsholders in enforcing their rights.  At the start of his opinion, AG Saugmandsgaard Øe considered the arguments raised by both sides in respect of the "profound divisions" in the issue of the liability of online intermediaries. He summarised this neatly at paragraph 5:

Summary of the legal issues

In summary, the questions referred were essentially:

1. Whether YouTube carried out a communication to the public under Article 3(1) of the InfoSoc Directive and could be considered primarily liable for hosting content uploaded by users on its platform, particularly when it earns advertising revenue but the videos are uploaded automatically without any review or control in advance; and
2. If not liable under the InfoSoc Directive, whether the activities fall within the safe harbour exemption under Article 14 of the E-Commerce Directive?

After his initial review of the theoretical arguments about what the law in this area should be, the AG applied the standard approach to whether a communication to the public had taken place and, if so, by whom.

The AG concluded that online platform operators are not directly liable for the illegal uploading of protected works by their platform users under the current law. This is because they are an intermediary that is not itself carrying out an act of communication to the public – the user carries out the communication and will therefore be primarily liable. The role of the intermediary is automatic and equates to the provision of physical facilities, which is expressly not a communication to the public.

The AG also opined that the platform operators could, in principle, benefit from the safe harbour exemption in respect of the files they stored for users. This should only be available however, where they did not have an active role or have any knowledge or control over the content and did not have actual knowledge or awareness that the information was uploaded illegally. The exemption applies to all forms of liability i.e. both primary and secondary liability. Therefore, the AG considered it was wrong only to ask this question where there was no liability under the InfoSoc Directive.

However, the AG also proposed that irrespective of liability of the intermediary, the rightsholder could still obtain an injunction against the operator of the online platform where they could establish that third parties were infringing their rights through the platform, without the need to wait for the infringement to take place again or show improper conduct by the intermediary. The aim is not just to remedy misconduct by the intermediary, but also to tackle infringement by the third parties.

Impact of this Opinion

This opinion goes against the recent direction in cases on communication to the public. The AG followed a relatively strict interpretation of communication to the public, whereas the CJEU has been more generous with the approach in recent cases such as finding that it could cover:

• the sale of a multimedia player with add-ons containing hyperlinks to websites illegally streaming protected works (Filmspeler) (also see our blog – CJEU delivers landmark ruling on communication to the public in Filmspeler case); and
• making available an online platform which stores and indexes torrent files uploaded by users (The Pirate Bay) (also see our blog – CJEU landmark ruling: The Pirate Bay's activities constitute a communication to the public and also our blog on the very recent Dutch ruling applying the CJEU ruling – Dutch courts order dynamic blocking injunction in long-running dispute between BREIN and ISPs).

The AG recognised this and stated that those decisions "brought within the scope of Article 3(1) of Directive 2001/29 acts which, strictly speaking, do not constitute actual or potential transmissions of works, but which facilitate the carrying out of such illegal transmissions by third parties". He also commented on the 'knowledge' requirement in recent case law and suggested that was more appropriate for secondary liability. From these comments, it seems that the AG is critical of these cases and he openly expressed that he had "reservations about the reasoning". However, he distinguished those cases where there was a clear intention on the part of the defendants themselves to facilitate illegal acts, whereas there was strong evidence that YouTube in particular actively tried to combat copyright infringement on its platform.

Looking at some of these cases, it does sometimes appear that the court's preference is to find liability in situations where it considers that there has been some wrongful activity that undermines the interests of rightsholders. Of particular interest here, was that the AG considered that the correct approach in relation to such situations was to look at secondary liability under the national law of the Member States and the availability of an injunction, rather than widening the scope of communication to the public under the InfoSoc Directive.  

Given the strong direction of the existing case law, it may be that the CJEU does not follow this opinion when it provides its judgment.

Regardless of the position that the CJEU takes in this case, the law will change in any event following implementation of the new Copyright Directive (2019/790) in Member States, the deadline for which is 7 June 2021. Under Article 17, the service provider will be considered to be performing an act of communication to the public when it gives the public access to copyright- protected works. The AG expressly considered that position and rejected the argument from the rightsholders that the Copyright Directive sought to 'clarify' the position under the InfoSoc Directive and should therefore apply retroactively. He considered it clear that Article 17 creates a new liability regime. There are also still questions about how this provision will be implemented and enforced in national laws and the technical mechanisms and processes that will be used to avoid liability.

However, given that the UK has indicated that it will not implement the Copyright Directive, this case could still provide guidance on the interpretation of the current law, which will remain the position in the UK at the end of the transitional period. If the CJEU follows the AG, then the position under the current legislation (and therefore potentially in the UK) will be more lenient to service providers than that under the Copyright Directive.