## Facts

- The European Union adopted Directive (EU) 2019/790, creating a special copyright-liability framework for online content-sharing service providers (OCSSPs) for user-uploaded content.
- Article 17 makes OCSSPs, in principle, directly liable for unauthorized uploads unless they satisfy exemption conditions requiring “best efforts” to obtain authorization, ensure unavailability of identified works, remove notified content, and prevent future uploads.
- The “best efforts” obligations, as applied in practice, entail prior review of uploads, typically through automated filtering tools.
- Poland brought an annulment action under Article 263 TFEU challenging Article 17(4)(b) and the final words of Article 17(4)(c), and alternatively sought annulment of Article 17 in full.
- Spain, France, Portugal, and the European Commission intervened in support of the European Parliament and the Council.
- The case was heard by the Court of Justice (Grand Chamber) and decided on 26 April 2022.

## Issues

1. Whether the challenged parts of Article 17 effectively require OCSSPs to conduct automated, ex ante review of user uploads.
2. Whether that regime, given risks of blocking lawful content, violates freedom of expression and information under Article 11 of the Charter, read with Articles 17(2) and 52(1).
3. Whether the challenged portions are severable such that partial annulment is permissible without changing the substance of Article 17’s liability regime.

## Decision

- The Court dismissed Poland’s action and upheld Article 17’s regime.
- The Court held that Article 17(4) entails a limitation on users’ freedom of expression and information because compliance generally requires prior review of uploads, often via automated means.
- The Court held the limitation is justified under Article 52(1) of the Charter because it is provided by law, pursues the legitimate objective of protecting intellectual property, and is proportionate given built-in safeguards.
- The Court held Poland’s request for partial annulment was inadmissible because Article 17 establishes a new, integrated liability regime whose provisions form an inseparable whole; severing the challenged parts would alter its substance.

## Legal Principles

- A legal framework that leads platforms to perform automated pre-upload checks can constitute an interference with freedom of expression and information when it restricts dissemination of lawful information and opinions.
- Such an interference may be compatible with the Charter if it is legally prescribed, respects the essence of the right, pursues a legitimate objective (including protection of intellectual property), and is necessary and proportionate.
- Article 17 must be applied so that automated blocking is limited to content that is clearly unlawful; platforms cannot be required to block content whose lawfulness depends on context-sensitive assessment under exceptions and limitations.
- Member States, regulators, and courts must interpret and apply the regime consistently with Charter rights, ensuring a fair balance between expression and intellectual property.
- Effective safeguards—including protection for lawful uses (e.g., quotation, criticism, review, caricature, parody, pastiche) and expeditious complaint, redress, human review, and judicial remedies—are central to proportionality.
- Partial annulment is unavailable where the challenged provisions are not severable from an integrated legislative scheme and their removal would change the scheme’s substance.

## Conclusion

The Court of Justice upheld the DSM Directive’s Article 17 liability-and-exemption framework, finding that the resulting automated prior review of uploads restricts expression but remains proportionate because the Directive requires protective interpretation and procedural mechanisms that reduce wrongful blocking and preserve lawful uses.


Republic of Poland v. European Parliament & Council of the European Union, Case C-401/19 (C.J.E.U. 2022)