Towards a Virtuous Legal Framework for Content Moderation by Digital Platforms in the EU? The Commission’s Guidance on Article 17 CDSM Directive in the light of the YouTube/Cyando judgement and the AG’s Opinion in C-401/19

Abstract

This article analyses the European Commission’s Guidance on Article 17 of the CDSM Directive, the CJEU's YouTube/Cyando judgement and the Advocate General’s Opinion in C-401/19. Together, these documents outline a legal framework for content moderation for digital platforms that tries respecting the copyright-inherent balances and minimize its negative impacts, without however eliminating all problematic issues relating to fundamental rights and other general principles of EU law. Especially after the Opinion in C-401/19, Art. 17's compatibility with freedom of expression seems extremely fragile as it is entirely conditional on how the provision will be implemented by Member States and what safeguards they will provide against overblocking of legitimate uses. Therefore, it is argued that in order to establish a virtuous content moderation system for digital platforms in the EU, it would have been essential to address more fundamental concerns around Art. 17, and in particular the fact that privately operated algorithmic tools will be deciding what content should be available online instead of independent assessors making such decisions based on copyright law’s equilibrium, and to take into account of the inherent limits and flaws of technology.

Keywords: Copyright, Fundamental Rights, Upload Filters, Article 17, Directive 2019/790, Content Moderation, Freedom of Expression

JEL Classification: K