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31 August 2020

Disclosure obligations and liability of UUC platforms in focus

It was in the very first Technology newsletter in fall 2019 that I reported about referrals to the CJEU concerning disclosure obligations and liability of user uploaded content (UUC) platform providers in relation to illegal (copyright infringing) uploads.

While Directive 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive) introduces a new liability regime in relation to copyright infringing uploads for so called online content-sharing service providers, such regime only concerns specific providers as well as specific infringements, and is not yet applicable.

Against this background the referrals concerning the provisions currently in force are and remain of great interest:

  • In the case Constantin Film v YouTube, C-264/19 the German Supreme Court, in essence, wanted to know whether Youtube, according to Art 8 (2) (a) of the Enforcement Directive, is obliged to disclose to the rights holder's email and IP addresses, as well as telephone numbers of YouTube users who had uploaded unlawful copies of films on that platform.

According to Art 8, infringers and intermediaries can be ordered to provide information on the origin and distribution networks of the goods or services which infringe an intellectual property right. According to Art 8 (2) (a) of such directive, such information shall, as appropriate, comprise names and addresses of the involved persons.

The CJEU now ruled that the notion of "address" does not extend to email, IP addresses and telephone numbers. Thus, Youtube and other intermediaries are merely obliged to provide the postal addresses of users concerned.

The CJEU's press release can be found here:

  • The joined cases C-682/18 YouTube and C-683/18 Cyando concern the liability of UUC platforms like YouTube and Uploaded in relation to illegal uploads. The German Supreme Court wanted to know whether such platform providers perform acts of communication to the public under Article 3 (1) of the InfoSoc Directive when hosting uploaded videos (which would mean that they use copyrighted works and thus infringe copyrights themselves), and whether the exemption of liability in Article 14 of the E-commerce Directive is available to these platforms (in particular when they infringe copyrights themselves).

The CJEU ruling is not yet available but the Advocate General (AG) recently proposed that – other than foreseen by the new DSM Directive – platform operators are not directly liable for an infringement of the exclusive right of authors. The fact that a platform has some or a significant degree of sophistication should not mean that the platform is not a mere facility. Moreover the AG is of the opinion that platform operators may, in principle, benefit from the exemption from liability provided for by the E-Commerce Directive for the files they store at the request of their users, provided that they did not play an "active role" of such a kind as to give them "knowledge of, or control over" the information in question, which would normally not be the case. In contrast, according to Art 17 of the DSM Directive, online content-sharing service providers will not be able to invoke the exemption of liability as foreseen in the E-Commerce directive in such cases. Furthermore, the AG proposes that, irrespective of the question of liability, rights holders may obtain, under EU law, injunctions against the operators of online platforms to stop infringements of users (this seems to be clear but is often overlooked/ignored by member states).

While the opinion of the AG will be a relief for platform providers, it remains to be seen whether the CJEU will follow such opinion – we will definitely keep you updated.

The CJEU's press release can be found here:

  • Very similar questions regarding the liability of providers of user uploaded content platforms were referred to the CJEU in the cases C-500/19, Puls 4 TV and C-442/19, Stichting Brein. We will also keep you posted on those cases.



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