Article 11 - Freedom of expression and information
Article 17 - Right to property
Key facts of the case:
Requests for a preliminary ruling from the Bundesgerichtshof.
Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Making available and management of a video-sharing platform or a file‑hosting and -sharing platform – Liability of the operator for infringements of intellectual property rights by users of its platform – Directive 2001/29/EC – Article 3 and Article 8(3) – Concept of ‘communication to the public’ – Directive 2000/31/EC – Articles 14 and 15 – Conditions for exemption from liability – No knowledge of specific infringements – Notification of such infringements as a condition for obtaining an injunction.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1) Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning 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, within the meaning of that provision, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright. That is the case, inter alia, where that operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that 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 that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing, which may be attested by the fact that that operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform.
2) Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the activity of the operator of a video-sharing platform or a file-hosting and -sharing platform falls within the scope of that provision, provided that that operator does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform.
Article 14(1)(a) of Directive 2000/31 must be interpreted as meaning that, for such an operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.
3) Article 8(3) of Directive 2001/29 must be interpreted as not precluding a situation under national law whereby a copyright holder or the holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, within the meaning of Article 14(1)(a) of Directive 2000/31, unless, before court proceedings are commenced, that infringement has first been notified to that intermediary and the latter has failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur. It is, however, for the national courts to satisfy themselves, when applying such a condition, that that condition does not result in the actual cessation of the infringement being delayed in such a way as to cause disproportionate damage to the rightholder.
64) At the same time, it follows from recitals 3 and 31 of the Copyright Directive that the aim of the harmonisation effected by it is to maintain, in particular in the electronic environment, a fair balance between, on one hand, the interests of copyright holders and related rights in protecting their intellectual property rights, safeguarded by Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, on the other, the protection of the interests and fundamental rights of users of protected subject matter, in particular their freedom of expression and of information, safeguarded by Article 11 of the Charter, and of the general interest (judgments of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 31, and of 29 July 2019, Pelham and Others, C‑476/17, EU:C:2019:624, paragraph 32 and the case-law cited).
65) It is clear that, for the purposes of the interpretation and application of the Copyright Directive, and in particular Article 3(1) thereof, that fair balance must be sought taking into account also the particular importance of the internet to freedom of expression and of information, as safeguarded by Article 11 of the Charter (see, to that effect, judgment of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 45).
113) In that regard, in addition to the fact that, according to the wording of Article 14(1)(a) of the Directive on Electronic Commerce, the illegality of the activity or information must be a matter of actual knowledge or must be apparent, that is to say, it must be specifically established or readily identifiable, it should be noted that, as is clear from recitals 41 and 46 of that directive, Article 14(1) reflects the balance which the directive seeks to strike between the various interests at stake, which include observance of freedom of expression, as safeguarded by Article 11 of the Charter. Thus, first, the providers of the services concerned cannot, in accordance with Article 15(1) of that directive, be subject to a general obligation to monitor the information which they transmit or store or to a general obligation actively to look for facts or circumstances indicating illegal activity. Second, pursuant to Article 14(1)(b) of the Directive on Electronic Commerce, those providers must, as soon as they actually obtain knowledge or awareness of illegal information, act expeditiously to remove or to disable access to that information, and must do so with due regard to the principle of freedom of expression. As the referring court has also pointed out, it is only in relation to specific content that such a provider is able to fulfil that obligation.
138) Finally, as regards the compatibility of a condition, such as that at issue in the main proceedings, with the objectives pursued by the Copyright Directive, it must be recalled that it follows from paragraphs 63 and 64 of the present judgment and from the Court’s case-law that it is for the national authorities and courts, in the context of measures adopted to protect rightholders, to strike a fair balance between, on the one hand, the protection of the intellectual property right enjoyed by those rightholders under Article 17(2) of the Charter, and, on the other, the right to the freedom to conduct a business enjoyed by service providers under Article 16 of the Charter and the right to freedom of expression and of information, safeguarded for internet users under Article 11 of the Charter (see, to that effect, judgments of 24 November 2011, Scarlet Extended, C‑70/10, EU:C:2011:771, paragraphs 45 and 46, and of 16 February 2012, SABAM, C‑360/10, EU:C:2012:85, paragraphs 43 and 44).