European Court maintains upload filter

Tech companies may continue to pre-check content that users post, the European Court of Justice said. The so-called upload filter does not violate the European right to freedom of expression.

The European Court of Justice makes that statement in a case brought by Poland before the Court. Poland called that upload filter a violation of freedom of expression within the European Union. This specifically concerns Article 17 of the Copyright Directive. It states that internet companies must prevent the sharing of copyrighted material. In practice, this means that social media companies use upload filters. Poland called the directive contrary to the European right to freedom of expression.

The Court rejects Poland’s objection. According to the Court, the directive contains sufficient guarantees that preserve the freedom of expression. For example, the directive states that automated filtering tools must distinguish between legal and illegal content. Also, Article 17 does not contain an obligation to monitor all user content, but only content classified as possible copyright infringement. In addition, the Court states that the Directive contains guarantees for the use of copyrighted material in parodies and satire.

According to the Court, errors cannot be prevented by the filter, but there is a ‘reasonable balance’ between those errors and the rights of EU citizens. However, the Court does say that Member States must clearly establish such safeguards if they include the upload filter in their national legislation. Those safeguards must strike a balance between the right to be protected by copyright and the right to fundamental freedoms in the EU.