Should operators of online and social media platforms police the posting of unauthorised or illegal content?

​​The Court of Justice of the European Union (the ECJ) recently answered the request from Germany’s Federal Court of Justice for a preliminary ruling concerning the liability of operators of online platforms regarding copyright protected works that are illegally posted on these platforms by users.

The requests relate to two cases before the German courts. The first concerns a dispute between music producer Frank Peterson and YouTube, a popular video sharing and social medial platform, regarding several recordings posted on YouTube which Peterson claims he holds various rights to. The second involves an action brought by Dutch publishing group Elsevier against Cyando regarding various works that were posted without Elsevier's permission on Cyando's file-hosting and sharing platform "Uploaded".

In its ruling the ECJ found that

"…the operator of a video-sharing platform or a file-hosting and sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content… unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright."

While the Court acknowledged that the operator of the platform affords users a simple way to share unlawful content on the internet it emphasised that an "act of communication" will be dependent on whether the operator proceeded, with full knowledge of the consequences of doing so, with the aim of giving the public access to the protected works.

The court provided the following relevant factors that assist in determining whether the operator deliberately intended to communicate the protected content:

  • Where the operator has specific knowledge that the protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it;
  • Where the operator, despite 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; or
  • Where the operator participates in selecting protected content illegally communicated to the public and provides tools on its platform specifically intended for the illegal sharing of this content or knowingly promotes such sharing, which may be attested by the fact that the operator has adopted a financial model that encourages users of its platform to illegally communicate protected content to the public via that platform.

While the ECJ ruling is considered to be a victory for YouTube and Cyando, the wider debate on how much online and social media platforms should police the posting of unauthorised or illegal content is far from over. The ECJ made it clear from the outset that it examined the liability of the operators under the set of rules applicable at the material time and did not concern itself with the rules established by Article 17 of Directive 2019/790, which establishes a new specific liability regime regarding works illegally posted online by users of online platforms.


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