Anya Proops QC on the possible effects of a recent CJEU judgment on intermediary liability.
The UK Government’s recent introduction of an Online Safety Bill has raised afresh the important question of the extent to which online intermediaries can and should be required to curate and police the content that they host or index online. The Bill itself is controversial. Not least there are serious questions as to whether, as currently framed, it will: (a) require intermediaries to meet excessively burdensome standards (b) subject Ofcom (the proposed regulator in respect of the relevant online safety duties) to regulatory obligations which are themselves Augean in nature and further (c) fundamentally undermine the free speech rights which the Bill itself recognises are foundational to a modern digital democracy. In other words, there is a serious question as to whether this is a Bill that will do more harm than good. It is against that backdrop that we should turn to consider the recent judgment of the CJEU in the case of Peterson v Google LLC C-682/18 and C-683/18. The Peterson case is a copyright case but has possible wider application because of what it says about the protections afforded to online intermediaries, and particularly hosting platforms, by the E-Commerce Directive.
The issue in Peterson was whether Google could be held liable in damages, and could also be subject to an injunction, where it was found to be hosting on YouTube videos containing copyright-infringing material. The upshot of the CJEU’s judgment is as follows: the operator of an online hosting platform will only lose the significant protections it enjoys under the E-Commerce Directive where it has the requisite wrongful knowledge in connection with its hosting of copyright-infringing material.
Such a situation will arise where the operator is placed on notice that particular material is being hosted in breach of copyright (e.g. by the holder of the copyright or through its own investigations) and then fails to remove it expeditiously (see paragraph 115). The operator will equally have the requisite wrongful knowledge where the platform itself exists for the purposes of conveying such illicit material to the public, as in the case of pirate, illegal-content sharing platforms (see paragraph 82 – see also paragraph 84 which suggests that an inference may be drawn by the court that a platform operator intends to host illegal content where it fails to put in place the anti-infringement measures that a reasonably diligent operator would be expected to have put in place).
However, the platform operator cannot be said to have the requisite wrongful knowledge merely because the platform is made available in circumstances where the intermediary knows that it may be used for illicit purposes, in breach of its terms and conditions (paragraph 111). Nor will the intermediary be fixed with wrongful knowledge merely because it has put in place mechanisms aimed at reducing the level of material that it hosts which infringes copyright (paragraph 109) or because it operates functionalities enabling the automated indexing and recommending of particular content (paragraph 114). None of these matters are sufficient to create a situation in which the intermediary is either (a) “communicating [the material] to the public” for the purposes of the Copyright Directive or (b) has lost the protections afforded to online intermediaries by the E-Commerce Directive – see in particular paragraph 102 (on the former point) and paragraphs 103-118 (on the latter point). As the Court put it at paragraph 118: to lose the latter protections, the platform operator ‘must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform’.
However, even where the intermediary has no direct liability in respect of the particular content (because they cannot be said to know that it is being hosted unlawfully), it can still in principle be subject to an injunction imposed by the domestic court where such injunction is: (a) necessary to bring to an end the infringement by the person who posts the content on the relevant platform (see paragraphs 132-133, and see the reference to the important earlier judgment in Glawischnig-Piesczek v Facebook Ireland Ltd (C-18/18)) and, further, (b) does not impose any obligation on the platform operator to conduct ‘general monitoring’ of the content it hosts, consistent with the prohibition on general monitoring contained in Article 15 of the E-Commerce Directive (paragraph 135).
As to the latter restriction, in principle a provision of German law which precluded the rightsholder obtaining an injunction in circumstances they had not given the operator prior notice of their complaint: (a) was compatible with Article 15 of the E-Commerce Directive and (b) struck a fair balance between the rights of copyright holders (as safeguarded by the Copyright Directive and recognised in Article 17 of the EU Charter) and ‘the right to the freedom to conduct a business enjoyed by service providers under art.16 of the Charter and the right to freedom of expression and of information, safeguarded for internet users under art. 11 of the Charter’ (paragraphs 137-139). That said it would be for the national court to ensure that the application of such a condition did not result in any undue delay in the infringing material being taken down or blocked (paragraphs 141-143).
So here we see the CJEU continuing to respect the core principles embodied in the E-Commerce Directive, which Directive is itself aimed fundamentally at ensuring that online intermediaries are not subject to excessive liability in respect of the content that they intermediate online.
This immediately begs the question of what relevance the judgment has in the post-Brexit, UK legal context. Well, the first point is that, post-Brexit, judgments of the CJEU are not binding on the English courts. However, they do have persuasive force. Subject to a complete recalibration of intermediary liability through the enactment of the Online Safety Bill, or other relevant legislation, the English courts will be required to apply the principles embodied in the E-Commerce legislation, as domesticated into UK law through the Withdrawal Act. In that context, the Peterson judgment is bound to influence heavily the English courts’ thinking on the subject of intermediary liability, and not just where copyright infringements are in issue, albeit that that influence is likely to be inflected by the fact that Charter principles were very deliberately not incorporated into UK law post-Brexit. More widely, the judgment creates a clear point of contrast against which the legislative shift to treating intermediaries as the digital caretakers of the online world, as envisaged by the Bill, falls to be judged. For these reasons alone the judgment is well worth considering.
Anya Proops QC of 11KBW is widely recognised as a leading privacy and media practitioner
This article was first published on 11KBW's Panopticon blog and is reproduced with permission