OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 15 July 2021 ( 1 )

Case C‑401/19

Republic of Poland

v

European Parliament,

Council of the European Union

(Action for annulment – Directive (EU) 2019/790 – Copyright and related rights – Use of protected content by online content-sharing service providers – Communication to the public – Liability of those providers – Article 17 – Exemption from liability – Article 17(4)(b) and (c), in fine – Filtering of content uploaded by users – Freedom of expression and information – Charter of Fundamental Rights of the European Union – Article 11(1) – Compatibility – Safeguards governing such filtering)

I. Introduction

1. By the present action, brought on the basis of Article 263 TFEU, the Republic of Poland asks the Court, principally, to annul Article 17(4)(b) and (c), in fine, of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC ( 2 ) and, in the alternative, to annul Article 17 in its entirety.

2. This action asks the Court to examine the question of the liability borne by providers of online sharing services when content that is protected by copyright or related rights is uploaded ( 3 ) by users of those services.

3. This issue has already been brought to the Court’s attention in Joined Cases C‑682/18, YouTube, and C‑683/18, Cyando, from the perspective of the framework provided by Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) ( 4 ) and by Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. ( 5 ) This case involves examining Article 17 of Directive 2019/790, which provides for a new liability regime applicable to online sharing service providers.

4. As I will explain in this Opinion, that provision imposes on those providers obligations to monitor the content posted by the users of their services in order to prevent the uploading of protected works and subject matter which the rightholders do not wish to make accessible on those services. Such preventive monitoring will, as a general rule, take the form of filtering that content using software tools.

5. That filtering raises complex questions, put forward by the applicant, with regard to the freedom of expression and information of users of sharing services, guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Further to its judgments in Scarlet Extended, ( 6 )SABAM ( 7 ) and Glawischnig-Piesczek, ( 8 ) the Court will have to determine whether, and as the case may be the circumstances in which, such filtering is compatible with that freedom. It will have to take account of the advantages, but also the risks of such filtering and, in that connection, ensure that a ‘fair balance’ is maintained between, on the one hand, the interest of rightholders in the effective protection of their intellectual property and, on the other, the interest of those users, and the general public, in the free flow of information online.

6. In this Opinion, I shall explain that, in my view, the EU legislature may, while observing freedom of expression, impose certain monitoring and filtering obligations on certain online intermediaries, provided, however, that those obligations are circumscribed by sufficient safeguards to minimise the impact of such filtering on that freedom. Since Article 17 of Directive 2019/790 contains, in my view, such safeguards, I shall propose that the Court should rule that that provision is valid and, consequently, that it should dismiss the action brought by the Republic of Poland. ( 9 )

II. Legal framework

A. Directive 2000/31

7. Article 14 of Directive 2000/31, entitled ‘Hosting’, provides, in paragraph 1: ‘Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.’

8. Article 15 of that directive, entitled ‘No general obligation to monitor’, provides, in paragraph 1: ‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’

B. Directive 2001/29

9. Article 3 of Directive 2001/29, entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides, in paragraphs 1 and 2: ‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: (a) for performers, of fixations of their performances; (b) for phonogram producers, of their phonograms; (c) for the producers of the first fixations of films, of the original and copies of their films; (d) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.’

10. Article 5 of that directive, entitled ‘Exceptions and limitations’, provides, in paragraph 3: ‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: … (d) quotations for purposes such as criticism or review …; … (k) use for the purpose of caricature, parody or pastiche; …’

C. Directive 2019/790

11. Article 17 of Directive 2019/790, entitled ‘Use of protected content by online content-sharing service providers’, provides: ‘1. Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users. An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of [Directive 2001/29], for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter. 2. Member States shall provide that, where an online content-sharing service provider obtains an authorisation, for instance by concluding a licensing agreement, that authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of [Directive 2001/29] when they are not acting on a commercial basis or where their activity does not generate significant revenues. 3. When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of [Directive 2000/31] shall not apply to the situations covered by this Article. The first subparagraph of this paragraph shall not affect the possible application of Article 14(1) of [Directive 2000/31] to those service providers for purposes falling outside the scope of this Directive. 4. If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have: (a) made best efforts to obtain an authorisation, and (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event (c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b). 5. In determining whether the service provider has complied with its obligations under paragraph 4, and in light of the principle of proportionality, the following elements, among others, shall be taken into account: (a) the type, the audience and the size of the service and the type of works or other subject matter uploaded by the users of the service; and (b) the availability of suitable and effective means and their cost for service providers. … 7. The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation. Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services: (a) quotation, criticism, review; (b) use for the purpose of caricature, parody or pastiche. 8. The application of this Article shall not lead to any general monitoring obligation. Member States shall provide that online content-sharing service providers provide rightholders, at their request, with adequate information on the functioning of their practices with regard to the cooperation referred to in paragraph 4 and, where licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements. 9. Member States shall provide that online content-sharing service providers put in place an effective and expeditious complaint and redress mechanism that is available to users of their services in the event of disputes over the disabling of access to, or the removal of, works or other subject matter uploaded by them. Where rightholders request to have access to their specific works or other subject matter disabled or to have those works or other subject matter removed, they shall duly justify the reasons for their requests. Complaints submitted under the mechanism provided for in the first subparagraph shall be processed without undue delay, and decisions to disable access to or remove uploaded content shall be subject to human review. Member States shall also ensure that out-of-court redress mechanisms are available for the settlement of disputes. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law, without prejudice to the rights of users to have recourse to efficient judicial remedies. In particular, Member States shall ensure that users have access to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright and related rights. This Directive shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law … Online content-sharing service providers shall inform their users in their terms and conditions that they can use works and other subject matter under exceptions or limitations to copyright and related rights provided for in Union law. 10. As of 6 June 2019 the Commission, in cooperation with the Member States, shall organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders. The Commission shall, in consultation with online content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders, and taking into account the results of the stakeholder dialogues, issue guidance on the application of this Article, in particular regarding the cooperation referred to in paragraph 4. When discussing best practices, special account shall be taken, among other things, of the need to balance fundamental rights and of the use of exceptions and limitations. For the purpose of the stakeholder dialogues, users’ organisations shall have access to adequate information from online content-sharing service providers on the functioning of their practices with regard to paragraph 4.’

III. Facts giving rise to the present action

A. The proposal for a directive on copyright in the Digital Single Market

12. On 14 September 2016, the European Commission submitted a proposal for a directive on copyright in the Digital Single Market. ( 10 ) The aim of that proposal was to adapt the EU rules in the field of literary and artistic property – copyright and rights related to copyright – in particular Directive 2001/29, to the evolution of digital technologies. ( 11 ) It also sought further to harmonise that area in a way that, whilst continuing to guarantee a high level of protection of intellectual property, ensures that creative content is widely available throughout the European Union and maintains a ‘fair balance’ with other public interests in the digital environment.

13. In that context, Article 13 of that proposal sought, more specifically, to remedy the ‘Value Gap’, namely the perceived gap between the value that online sharing service providers derive from protected works and subject matter and the revenue they distribute to rightholders. ( 12 )

14. It that regard, it should be recalled that the services in question, which are characteristic of interactive ‘Web 2.0’ services, and of which YouTube, ( 13 ) Soundcloud and Pinterest are the best-known examples, enable anyone automatically to upload the content they wish, without prior selection by their providers. The content uploaded by the users of those services – commonly referred to as ‘user-generated content’ or ‘user-uploaded content’ – can then be streamed from the websites or applications for smart devices associated with those services, that viewing being facilitated by indexing, search and recommendation functionalities which are generally found on those websites and applications – in most cases free of charge – as the providers of those services are usually remunerated from the sale of advertising space. A huge amount of content ( 14 ) is thus made available to the public on the Internet, including a significant proportion of works and other protected subject matter.

15. Since 2015, rightholders, and in particular those in the music industry, have claimed that, while those sharing services are, de facto, an important part of the online distribution of protected works and other subject matter and their providers bring in considerable advertising revenue from them, they do not remunerate rightholders fairly. The revenue that those providers distribute to those same rightholders is insignificant compared to the amount that providers of music streaming services – such as Spotify – pay them, even though those two types of service are often seen by consumers as equivalent sources of access to that subject matter. This is also said to lead to unfair competition between those services. ( 15 )

16. In order to understand the ‘Value Gap’ argument properly, we must look back to the legal framework which applied before the adoption of Directive 2019/790 and the uncertainties surrounding it.

17. First, Article 3(1) of Directive 2001/29 grants authors the exclusive right to authorise or prohibit any ‘communication to the public’ of their works, including the ‘making available to the public’ of those works in such a way that members of the public may access them from a place and at a time individually chosen by them. ( 16 ) Similar rights are granted to holders of related rights over their protected subject matter ( 17 ) under Article 3(2) of that directive. ( 18 ) In principle, ( 19 ) a third party cannot therefore ‘communicate to the public’ a work or subject matter without having, beforehand, obtained authorisation from the rightholder or rightholders of that work or subject matter, which generally takes the form of a licensing agreement, granted in return for remuneration. ( 20 ) While it has always been clear that the uploading, by a user, of a work or protected subject matter to a sharing service constitutes an act of ‘communication to the public’ requiring such prior authorisation, the question whether the providers of those services should themselves conclude licensing agreements and remunerate rightholders had become a subject of controversy between those providers and rightholders. ( 21 )

18. Secondly, Article 14 of Directive 2000/31 contains a ‘safe harbour’ for providers of information society services that consists of the storage of information provided by third parties. That provision provides, in essence, that the provider of such a service is exempt from any liability which may arise ( 22 ) from illegal content which it stores at the request of the users of that service, provided that it is unaware of it or, where it becomes aware, it removes it expeditiously. Again, there was controversy as to whether the providers of online sharing services could benefit from that exemption in the field of copyright. ( 23 )

19. That controversy was even greater as the Court had not had occasion to settle those disputes until now. ( 24 )

20. In that context, some sharing service providers had simply refused to conclude licensing agreements with rightholders for the protected works and subject matter uploaded by users of their services, taking the view that they were not required to do so. Other providers had nevertheless agreed to enter into such agreements, but the terms of those agreements were not fair, according to rightholders, as they were unable to negotiate on an equal footing with those service providers. ( 25 )

21. That said, the proposal for a directive was therefore aimed at, first, enabling rightholders to obtain better remuneration for the use of their works and other protected subject matter on online sharing services, by upholding the obligation, for the providers of those services, to conclude licensing agreements with those rightholders. ( 26 )

22. Secondly, that proposal aimed to enable rightholders to control more easily the use of their works and protected subject matter on the services in question. In that regard, Article 13 of the proposal for a directive required the providers of such services, in essence, to use automatic content recognition tools that had already been introduced, voluntarily, by some of them, that is to say, IT tools, the operation of which will be described below, ( 27 ) which may be used inter alia when a user uploads content – hence such tools commonly being called an ‘upload filter’ – in order to verify, through an automated process, whether that content includes a work or other protected subject matter and, if that is the case, to block its dissemination. ( 28 )

23. The proposal for a directive, in particular Article 13 thereof, has given rise to numerous debates within the Parliament and the Council during the legislative process. That process has also been marked by intensive lobbying campaigns on the part of the economic operators concerned and demonstrations of opposition from part of civil society, academic circles and advocates for freedom of expression, who argue that the obligation for sharing service providers to install ‘upload filters’ would, in their view, be likely to have harmful effects on that freedom. ( 29 )

24. The proposal for a directive was finally approved by the Parliament on 26 March 2019 and by the Council on 16 April 2019. ( 30 ) That proposal was officially adopted as Directive 2019/790 on 17 April 2019. It had to be transposed by the Member States by 7 June 2021 at the latest. ( 31 )

B. Article 17 of Directive 2019/790

25. During that legislative process, Article 13 of the proposal for a directive underwent various amendments. It has been adopted, using substantially different wording, as Article 17 of Directive 2019/790. It seems to me appropriate at this stage to set out some of the key aspects.

26. First, Article 17 of Directive 2019/790 is targeted at ‘online content-sharing service providers’, as stated in its title. ( 32 ) That concept is defined in the first subparagraph of Article 2(6) of that directive as referring to any ‘provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes’. Irrespective of the open nature of the terms used, it is clear from that definition that Article 17 concerns the ‘large’ sharing service providers deemed to be linked to the ‘Value Gap’, ( 33 ) and whose operation that definition is clearly intended to reflect. ( 34 )

27. Secondly, the first subparagraph of Article 17(1) of Directive 2019/790 stipulates that a sharing service provider ‘performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users’. Therefore, as stated in the second subparagraph of that paragraph, those providers must, in principle, obtain an authorisation from the rightholders, for instance by concluding a licensing agreement, for the use on their service of protected content uploaded by users. ( 35 ) The EU legislature has, therefore, settled ex lege the dispute referred to in point 17 of this Opinion in favour of said rightholders. ( 36 )

28. That obligation is directly related to the general objective pursued by Article 17 of Directive 2019/790, namely ‘to achieve a well-functioning and fair marketplace for copyright’, ( 37 ) by fostering the development of ‘the licensing market between rightholders and … sharing service providers’. The aim is to strengthen the position of those rightholders during the negotiation (or renegotiation) of licensing agreements with those providers, in order to ensure that those agreements are ‘fair’ and keep a ‘reasonable balance between both parties’ ( 38 ) – and, in so doing, to remedy the ‘Value Gap’. The negotiating position of those rightholders is further strengthened by the fact that, in principle, they are not obliged to conclude such agreements with those providers. ( 39 )

29. Thirdly, Article 17 of Directive 2019/790 specifies, in paragraph 3, that, when a sharing service provider performs an act of ‘communication to the public’ or ‘making available to the public’ under the conditions laid down in paragraph 1 of that article, the exemption from liability provided for in Article 14 of Directive 2000/31 does not apply. ( 40 )

30. Fourthly, Article 17(4) states that, where sharing service providers have not obtained authorisation from the rightholders, they are liable for ‘unauthorised’ ( 41 ) acts of communication to the public performed through their services. This is a logical consequence of the foregoing: since those providers are now deemed to perform acts of ‘communication to the public’ when they ‘give access’ to works and other protected subject matter uploaded by the users of their services, they bear direct (or ‘primary’) liability in the event of unlawful ‘communication’.

31. In principle, the direct liability of the person who performs an unlawful act of ‘communication to the public’ is strict. ( 42 ) Sharing service providers should therefore be automatically liable each time a work or protected subject matter is illegally uploaded to their services. In that regard, they could inter alia be ordered to pay potentially significant damages to the rightholders concerned. ( 43 )

32. Nevertheless, since, first, it is the users of sharing services who upload the content found on them, without their providers making a prior selection in that regard, ( 44 ) and, secondly, those providers will probably not be able to obtain authorisation from all rightholders for all of the protected works and other subject matter, present and future, which could therefore be uploaded to them, ( 45 ) such strict liability would have required those providers completely to change their economic model – and, in so doing, to abandon the very model of the interactive ‘Web 2.0’.

33. Therefore, the EU legislature took the view that it was appropriate to provide for a specific liability mechanism for those providers. ( 46 ) In accordance with Article 17(4) of Directive 2019/790, they may, in the event of unlawful ‘communication to the public’ through their services, exempt themselves from all liability by demonstrating that they have: ‘(a) made best efforts to obtain an authorisation, and (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event (c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).’

34. Two of those cumulative conditions are at the heart of the present action. The other paragraphs of Article 17 of Directive 2019/790 will be presented in the course of the examination of this action. ( 47 )

IV. Procedure before the Court and forms of order sought

35. By application lodged at the Registry of the Court of Justice on 24 May 2019, the Republic of Poland brought the present action.

36. The Republic of Poland claims that the Court should: – annul Article 17(4)(b) and (c), in fine, that is to say, in so far as the wording ‘and made best efforts to prevent their future uploads in accordance with point (b)’ is concerned, of Directive 2019/790; – in the alternative, should the Court consider that the contested provisions cannot be separated from the remainder of Article 17 of that directive without changing its substance, annul that article in its entirety; – order the Parliament and the Council to pay the costs.

37. The Parliament contends that the Court should: – dismiss the action as unfounded; – order the Republic of Poland to pay the costs.

38. The Council contends that the Court should: – reject the principal claims as inadmissible; – in the alternative, dismiss the action as unfounded in its entirety; – order the Republic of Poland to pay the costs.

39. By decision of the President of the Court of 17 October 2019, the Kingdom of Spain, the French Republic, the Portuguese Republic and the European Commission were granted leave to intervene in support of the forms of order sought by the Parliament and the Council. Statements in intervention were lodged by all of the interveners, with the exception of the Portuguese Republic.

40. The parties and the interveners, with the exception of the Portuguese Government, were represented at the hearing held on 10 November 2020.

V. Analysis

41. In support of its action, the Republic of Poland raises a single plea in law, alleging infringement of the right to freedom of expression and information guaranteed by Article 11(1) of the Charter. ( 48 ) Before examining the merits of that plea in law (section B), I shall briefly address the admissibility of the application (section A).

A. Admissibility

42. The Parliament, the Council, the French Government and the Commission submit that the principal form of order sought in the application, in so far as it seeks the annulment only of Article 17(4)(b) and (c), in fine, of Directive 2019/790, is inadmissible. I also take this view.

43. In accordance with the Court’s settled case-law, partial annulment of an EU act is possible only if the elements the annulment of which is sought may be severed from the remainder of that act. That requirement is not satisfied where that partial annulment would have the effect of altering the substance of said act. ( 49 )

44. The annulment of only points (b) and (c), in fine, of paragraph 4 would clearly alter the substance of Article 17 of Directive 2019/790. As the Parliament, the Council, the French Government and the Commission submit, the various provisions of Article 17 constitute, as a whole, a ‘complex’ liability regime which reflects the balance sought by the EU legislature between the rights and interests of sharing service providers, the users of their services and rightholders. The annulment of only the contested provisions would have the consequence of replacing that liability regime with a regime that is both substantially different and significantly more favourable to those providers. In other words, a partial annulment of that kind would be tantamount to the Court revising Article 17, which it cannot do in annulment proceedings under Article 263 TFEU.

45. However, it is common ground between the parties that the form of order sought by the applicant in the alternative, by which it requests the annulment of Article 17 of Directive 2019/790 in its entirety, is admissible. As important as that article may be, its annulment would not change the substance of that directive. The many articles of Directive 2019/790 have a variety of purposes and are divided into different titles and chapters. Accordingly, Article 17 of that directive may be severed from its other articles, which could wholly remain in force if Article 17 were annulled. ( 50 )

B. Substance

46. The single plea in law raised by the Republic of Poland can be summarised in a few words. In essence, the Republic of Poland submits that, in accordance with Article 17(4)(b) and (c), in fine, of Directive 2019/790, sharing service providers are obliged, in order to be exempt from any liability in the event of the unlawful ‘communication to the public’ of works or other protected subject matter on their services, to carry out preventive monitoring of the content users wish to upload. To do this, they must use software tools which enable the automatic filtering of such content. That preventive monitoring is said to constitute a limitation on the exercise of the right to freedom of expression, guaranteed in Article 11 of the Charter. That limitation is not compatible with the Charter since it undermines the ‘essence’ of that fundamental right or, at the very least, fails to comply with the principle of proportionality.

47. In defence, the Parliament and the Council, supported by the Spanish and French Governments and the Commission, dispute each of those points. I shall therefore examine them in turn in the following sections. I shall consider, first, the scope of the contested provisions (section 1). Next, I shall address the issue of the limitation on the exercise of the right to freedom of expression and information (section 2) and, finally, that of the compatibility of that limitation with the Charter (section 3).

1. The scope of the contested provisions

48. In order properly to understand the scope of the conditions for exemption from liability provided for in Article 17(4)(b) and (c), in fine, of Directive 2019/790, it is useful to have in mind, as a point of comparison, those contained in Article 14 of Directive 2000/31. In essence, under that article, a provider is exempt from any liability which may arise from illegal information which it stores at the request of a user of its service provided that, first, it is unaware of it or that, secondly, where it becomes aware, it has expeditiously removed that information or has blocked access to it. In practice, such a provider is not expected to monitor the information on its servers and actively to search for illegal information on those servers. ( 51 ) However, where the existence and the location of such illegal information is brought to its knowledge, as a general rule by means of a notice sent by a third party, that provider must react by removing the information in question or blocking access to it – following a system of ‘notice and take down’. ( 52 )

49. By contrast, as the applicant submits, in order to satisfy the conditions laid down in the contested provisions, sharing service providers must carry out preventive monitoring of the information uploaded by the users of those services (section (a)). In order to carry out such monitoring, those providers, in many situations, will have to use software tools which enable the automatic filtering of that content (section (b)).

(a) Preventive monitoring of content uploaded by users …

50. In the first place, I note that, first, in accordance with Article 17(4)(b) of Directive 2019/790, sharing service providers must make ‘in accordance with high industry standards of professional diligence, best efforts’ to ‘ensure the unavailability’ of specific works and other protected subject matter for which the rightholders have provided the service providers with the relevant and necessary information.

51. Secondly, in accordance with point (c) of that paragraph, where they receive a sufficiently substantiated notice from the rightholders, concerning the presence of works or other protected subject matter on their services, those providers must not only act expeditiously to disable access to that subject matter or remove it from their websites, ( 53 ) but must also make ‘best efforts’ to ‘prevent [its] future uploads’ – following, this time, the logic of ‘notice and stay down’.

52. In short, the contested provisions impose on sharing service providers obligations of diligence – or, in other words, obligations to use best endeavours ( 54 ) – with regard to the monitoring of their services. In order to ‘ensure the unavailability’ of the works and other protected subject matter identified by the rightholders and ‘prevent their future uploads’, those providers must take ‘all the steps that would be taken by a diligent operator’ ( 55 ) actively to detect and disable access to or remove, from the mass of content uploaded by users, content which reproduces the subject matter in question. ( 56 )

53. That interpretation is confirmed by the objective pursued in Article 17 of Directive 2019/790. Under Article 14 of Directive 2000/31, rightholders had to monitor sharing services and inform their providers, by means of notifications, of infringing content found on the service so that providers could remove it. As the Council has pointed out, the EU legislature considered, when adopting Article 17, that such a system placed too heavy a burden on rightholders and did not allow them to control effectively the use of their works and other protected subject matter on those services. ( 57 ) In particular, removed content was often re-uploaded soon afterwards, which forced rightholders to increase the number of notices. ( 58 ) In order to address the issue, the contested provisions transfer to the sharing service providers the responsibility for monitoring their services. ( 59 )

54. In the second place, as the Republic of Poland submits, in order to achieve the objectives set out in the contested provisions, sharing service providers must seek to prevent – ex ante – infringing content from being uploaded, and no longer simply remove such content ex post.

55. In that regard, it is clear from recital 66 of Directive 2019/790 that, in accordance with Article 17(4)(b) of that directive, sharing service providers must seek to ‘avoid’ works and other protected subject matter identified by rightholders from ‘[becoming] available’ on their services. Article 17(4)(c) is even more explicit as to the nature of the measures to be taken, since it states that those providers must seek to ‘prevent … future uploads’ of works or other subject matter which have been notified by rightholders. The phrase ‘in accordance with point (b)’ also emphasises that the same is expected from those providers in both points: they must seek to prevent the uploading – or the re-uploading, in the context of the ‘stay down’ system – of certain illegal content on their services.

56. That interpretation is, again, confirmed by the objective pursued by Article 17 of Directive 2019/790 of enabling rightholders to monitor more easily the use of their works on sharing services. As the Council has submitted, that provision seeks to reaffirm the exclusive nature of the right of ‘communication to the public’ in the digital environment. The obligations of diligence imposed on sharing service providers by the contested provisions seek to ensure that those rightholders can effectively ‘intervene, between possible users of their work and the communication to the public which such users might contemplate making’ ( 60 ) on those services. As the Parliament and the Council have pointed out, providers must therefore endeavour to intervene before content is uploaded, that is to say, before the works or protected subject matter which that content may reproduce are actually ‘communicated to the public’ in breach of that exclusive right.

(b) … which, in many cases, will require the use of filtering tools

57. In this section of the Opinion, I feel it would be useful to explain that a number of software tools enable the automatic detection of specific information that is uploaded to or present on a server. In particular, there are automatic content recognition (ACR) tools, which are based on various techniques, namely – from the simplest to the most complex – hashing, watermarking and fingerprinting. ( 61 )

58. Since the second half of the 2000s, such tools, particularly using the latter technique, ( 62 ) have been introduced on a voluntary basis by some sharing service providers, in order in particular ( 63 ) actively to search for infringing content on their services. ( 64 )‘Digital fingerprinting’ recognition tools can automatically filter rightholders’ protected works and subject matter from the content uploaded to sharing services by comparing that content when it is uploaded or once it has been posted with reference information provided by those rightholders. ( 65 ) When that comparison identifies a match, those tools generally give the rightholders concerned the choice of deciding manually or automatically to block the content in question, to authorise its upload and track its popularity through viewer statistics or even to ‘monetise’ that content by inserting advertisements. ( 66 )

59. The proposed directive embraced those technological developments. The Impact Assessment highlighted the effectiveness of recognition tools using ‘digital fingerprinting’ with regard to counterfeiting and their increased availability on the market. That proposal sought, I would reiterate, ( 67 ) to make it compulsory for sharing service providers to put those tools into place, the aim being to force those who had not yet done so to ‘catch up’ and to require others to give rightholders transparent access to their recognition tools. ( 68 )

60. As has been pointed out by the Parliament, the Council and the Spanish Government, the final version of Directive 2019/790 no longer contains explicit references to automatic content recognition tools. Article 17(4)(b) and (c) of that directive are drafted in general terms. Those provisions do not formally require sharing service providers to adopt specific measures or techniques in order to attain the objectives they pursue. ( 69 )

61. According to the defendants and the interveners, the contested provisions do not therefore require those providers to use such tools. The latter are said to have ‘wiggle room’ in respect of the measures and techniques to be implemented in order to attain the objectives referred to in those provisions. In that context, those providers may ‘choose’ to use such tools – or to continue to do so, in the case of those who already use them – or even develop ‘innovative solutions’. ( 70 ) In any event, in accordance with Article 17(5) of Directive 2019/790, the measures required of those providers must be examined on a case-by-case basis, in the light of the principle of proportionality.

62. That said, as the Republic of Poland submits, it seems to me that the contested provisions do force sharing service providers, in many situations, to use those content recognition tools. ( 71 ) In my view, the EU legislature has simply changed its approach between the proposal for a directive and its adoption as Directive 2019/790. Rather than directly providing for an obligation to put those tools into place, it has indirectly imposed their use by means of the conditions for exemption from liability laid down in those provisions.

63. First, as the applicant has rightly pointed out, the factual context of the contested provisions must be borne in mind. Article 17 of Directive 2019/790 concerns service providers which store and give the public access to a ‘large amount of copyright-protected works or other protected subject matter’. In other words, these are operators which manage a significant, or even huge, volume of content. Moreover, those sharing services are provided on a continuous basis and are open to a considerable number of users, and therefore substantial volumes of new content can be uploaded at any time.

64. In that context, it is clear to me that, as the applicant submits, the employees of sharing service providers would not be able to check all or even most of the content uploaded ( 72 ) – a fact which the Parliament also acknowledges. Therefore, I find it difficult to see by what means other than the use of an automatic recognition tool enabling them to filter the content uploaded to their services those providers would reasonably be able to ‘ensure the unavailability’ of protected works and subject matter identified by rightholders and ‘prevent their future upload’ to their services, in accordance with the objectives set out in the contested provisions ( 73 ) – and the reference by the Parliament and the Council to possible ‘innovative solutions’ is not particularly helpful in that respect. ( 74 ) Furthermore, the defendants and the interveners acknowledged in a roundabout way at the hearing that those tools will often be, de facto, essential in that regard. ( 75 )

65. Secondly, I recall that sharing service providers, in order to comply with the obligations of diligence imposed on them, in accordance with the wording of Article 17(4)(b) of Directive 2019/790, have to take measures which meet ‘high industry standards of professional diligence’. As stated in the second paragraph of recital 66 of that directive, account must be taken in that regard of ‘best industry practices’ and the ‘state of the art’.

66. As I explained in point 58 of this Opinion, recognition tools using ‘digital fingerprinting’ are already used by various sharing service providers, in respect of several types of content. ( 76 ) Other providers accepting such content on their services would therefore appear to be obliged, in order to comply with the obligations of diligence resulting from the contested provisions, to conform to ‘best industry practices’ and the ‘state of the art’ by putting those tools into place to filter those categories of content.

67. Admittedly, as the defendants and the interveners have pointed out, in accordance with Article 17(5) of Directive 2019/790, the measures to be taken by sharing service providers must, in each case, comply with the principle of proportionality. In that regard, account must be taken of, first, ‘the type, the audience and the size of the service and the type of works or other protected subject matter uploaded by the users of the service’ and, secondly, ‘the availability of suitable and effective means and their cost for service providers’. ( 77 ) In that context, it cannot be ruled out that, in specific cases, it would be contrary to that principle to require certain providers to use a content recognition tool. It also appears that, in the current state of technology, those tools are neither suitable nor effective as regards certain specific types of protected works and subject matter. ( 78 )

68. However, those specific cases aside, it is clear, to me, that, in all situations in which various appropriate and effective tools are available on the market and are not unreasonably expensive, sharing service providers are a priori required to put them into place in order to demonstrate that they have made ‘best efforts’ to prevent the uploading of illegal content and, therefore, to comply with the contested provisions. ( 79 ) Where appropriate, in accordance with the principle of proportionality, they are able to choose from among the available tools those which are best adapted to their situations and the resources available to them ( 80 ) – or even, for the wealthiest among them, to develop such a tool in-house.

69. In short, in order to demonstrate, in accordance with the contested provisions, that they have made ‘in accordance with high industry standards of professional diligence, best efforts’ to ‘ensure the unavailability’ of protected works and subject matter identified by rightholders and ‘prevent their future uploads’ to their services, sharing service providers must, in many cases, put into place automatic content recognition tools, in order to filter the content that users upload and, where appropriate, block certain content before it is uploaded. ( 81 )

2. The existence of a limitation on the exercise of the right to freedom of expression and information

70. As the scope of the contested provisions has been clarified, I must now begin the examination of those provisions in the light of the right to freedom of expression and information.

71. The right guaranteed in Article 11 of the Charter, which ‘shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’, corresponds to that provided for in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). ( 82 ) Under Article 52(3) of the Charter, those two rights therefore have the same meaning or, at the very least, the same scope. It follows that Article 11 of the Charter must be interpreted in the light of Article 10 of the ECHR and the related case-law of the European Court of Human Rights (the ‘ECtHR’).

72. That fundamental right is undeniably relevant in the present case. As the Republic of Poland and the Commission stated in their respective observations, the sharing services referred to in Article 17 of Directive 2019/790 are of particular importance to the freedom to receive and impart information and ideas.

73. As the applicant submits, the uploading of content to those services – whether it be videos, photographs, texts, and so forth – therefore falls within the scope of the exercise of the right to freedom of expression and information. ( 83 ) Such uploading is also likely to affect other related freedoms. In particular, where the content in question constitutes the artistic expression of the users who upload it, its posting falls within the scope of the exercise of the freedom of the arts, guaranteed in Article 13 of the Charter and Article 10 of the ECHR. ( 84 )

74. I would point out that that is the case irrespective of whether or not that content infringes copyright. The argument to the contrary put forward by the Parliament is, in my view, based on a legal approximation. The fact that information is protected by copyright does not have the effect of excluding it automatically from the scope of freedom of expression. ( 85 ) While, as a general rule, a restriction on the transmission of such information is justified, this is relevant only at the stage of examining the conditions for the admissibility of such a restriction on that freedom. ( 86 )

75. According to the applicant, the filtering measures which sharing service providers are obliged to put into place in order to comply with Article 17(4)(b) and (c), in fine, of Directive 2019/790 are, by nature, ‘preventive measures’ to monitor users’ information. Those measures would entail ‘prior restraints’ within the meaning of the case-law of the ECtHR on Article 10 of the ECHR. The contested provisions therefore entail the introduction, on sharing services, of ‘general and automated preventive censorship’ by the providers of those services. Those provisions therefore constitute a particularly serious ‘interference’ by the EU legislature with the freedom of expression and information of those users.

76. By contrast, the defendants and the interveners dispute that the contested provisions entail such ‘censorship’ or any form of ‘interference’ with that freedom. In particular, according to the Council, the purpose of those provisions – or of Article 17 of Directive 2019/790 in general – is not to restrict ex ante the information that may be disseminated on those services. Users are said to remain free to upload whatever content they wish. Simply, in all situations where uploaded content is protected by copyright, those providers should obtain authorisation from the rightholders concerned and, failing that, they would be liable ex post.

77. Like the applicant, I consider that the contested provisions do in fact entail an ‘interference’ with the freedom of expression of the users of sharing services. However, I would like to clarify the terminology from the outset. It is true that the term ‘censorship’ has multiple meanings. However, it is clear from the applicant’s observations that it uses the term to refer to the idea of a prior review of information before it is disseminated. In that context, the arguments put forward by the Parliament, the Council and the Spanish Government that the term ‘censorship’ is not relevant in this case on the ground that Article 17 of Directive 2019/790 does not imply any‘political or moral’ control of the information uploaded to sharing services are, in my view, irrelevant. In order to avoid any further confusion, in this section I shall simply use the terms ‘preventive measures’ and ‘prior restraints’.

78. That said, Article 17 of Directive 2019/790 does not simply stipulate, as the Council submits, that sharing service providers must obtain an authorisation for the protected content uploaded by users of their services or, otherwise, they are directly liable for it. As I explained in the previous section, the contested provisions also stipulate that those providers are exempted from that liability when they make ‘best efforts’ to prevent the uploading, by those users, of content which reproduces the works and other protected subject matter identified by rightholders. Those providers are therefore required preventively to filter and block the content in question.

79. As the applicant submits, filtering, by nature, is a ‘preventive measure’ to monitor the information disseminated on those services, and the blocking measures which may result from it constitute ‘prior restraints’ within the meaning of the case-law of the ECtHR relating to Article 10 of the ECHR: ( 87 ) in order not to suppress, but to prevent any infringement of copyright, the information which users intend to upload is monitored, and information considered likely to lead to such an infringement is restricted prior to its dissemination. ( 88 )

80. In those situations, contrary to the Council’s submissions, users are therefore not ‘free’ to upload whatever content they wish to sharing services. The filtering and blocking measures put into place by sharing service providers will restrict the content they can upload. This results in an ‘interference’ with the exercise of those users’ freedom of communication. The filtering and blocking of content prior to its dissemination also entail an ‘interference’ with the public’s freedom to receive information. ( 89 )

81. The Parliament and the Council assert in reply that sharing service providers, as private operators, may freely choose the information they wish to see disseminated using their services and, therefore, they may decide to filter and block content. Even if this were to constitute an ‘interference’ with the freedom of expression of users, that interference, in any event, would not be attributable to the EU legislature.

82. In my view, that argument confuses two situations. It is true that, in the exercise of the freedom to conduct a business and the freedom of contract which they are guaranteed by Article 16 of the Charter, sharing services providers may, in the terms of use of their services or ‘community standards’, devise a content policy and, on their own initiative, exercise a form of‘self-regulation’ by filtering and blocking content which, in their view, contravenes those rules. In this situation, there is no ‘interference by public authority’, within the meaning of Article 10 of the ECHR and Article 11 of the Charter, in users’ freedom of expression. ( 90 )

83. However, in the present case, in my view, there is no question of ‘self-regulation’ by sharing service providers. Irrespective of whether the prohibition on posting infringing content is in their terms and conditions or their ‘community standards’, the filtering and blocking of content is carried out in order to comply with the contested provisions. ( 91 )

84. Therefore, in my view, the ‘interference’ with the freedom of expression of users is indeed attributable to the EU legislature. It has instigated that interference. Moreover, the Parliament and the Council themselves acknowledge that the contested provisions are intended, in essence, to make sharing service providers responsible for monitoring copyright infringements committed on their services. To some extent, the legislature has delegated to those providers the task of monitoring the proper application of copyright in the digital environment. The legislature cannot delegate such a task and at the same time shift all liability to those providers for the resulting interferences with the fundamental rights of users. ( 92 )

85. My view in that regard has not been changed by the Council’s argument that the contested provisions do not ‘oblige’ sharing service providers to filter and block content uploaded to their services by their users on the ground that Article 17(4) of Directive 2019/790 does not, strictly speaking, impose any ‘obligation’ on those providers, but merely provides for a liability exemption mechanism which they have the ‘option’ of using where they have not obtained authorisation from the rightholders.

86. In my view, in order to assess the compatibility of Article 17 of Directive 2019/790 with Article 11 of the Charter, account must be taken not only of its wording, but also of its actual effects. In view of the fact that, on the one hand, sharing services providers will not be able to obtain authorisation from rightholders for a number of works and other protected subject matter ( 93 ) whereas, on the other, users could, potentially, still upload content which reproduces the subject matter in question, recourse to the exemption mechanism provided for in Article 17(4) of Directive 2019/790 will be a necessity rather than an ‘option’ for those providers, otherwise they will bear a disproportionate risk of liability. Thus, in many cases, the conditions for exemption laid down in the contested provisions will, in practice, constitute genuine obligations for those providers. Moreover, I note that Article 17(5) refers to ‘obligations [on service providers] under paragraph 4’ (emphasis added).

87. In my view, such a mechanism of liability/exemption is just as effective a technique as a direct obligation to require the economic operators concerned to filter their users’ content as a preventive measure. As I stated in point 62 of this Opinion, the EU legislature has simply changed its approach in this respect. However, these different methods have the same effects and must, for that reason, be considered in the same way with regard to fundamental rights. ( 94 )

3. The compatibility of that limitation with the Charter

88. It is clear from the foregoing section that, as the Republic of Poland submits, the contested provisions entail a limitation on the exercise of the right to freedom of expression, as guaranteed by Article 11 of the Charter.

89. However, freedom of expression is not an absolute right. In accordance with Article 52(1) of the Charter, limitations on the exercise of that freedom are permissible provided that they, first, are ‘provided for by law’, secondly, respect the ‘essence’ of that freedom and, thirdly, respect the principle of proportionality.

90. Similarly, in accordance with Article 10(2) of the ECHR and the related case-law of the ECtHR, an interference with freedom of expression is permissible provided that it, first, is ‘prescribed by law’, secondly, pursues one or more legitimate aims defined in paragraph 2 and, thirdly, is ‘necessary in a democratic society’. ( 95 ) Although those conditions differ in part, in their wording, from those laid down in Article 52(1) of the Charter, they must, again, be regarded as having the same meaning or, at the very least, the same scope. ( 96 )

91. Therefore, in the following sections, I shall examine compliance with the three conditions laid down in Article 52(1) of the Charter, while interpreting them in the light of the relevant case-law of the ECtHR. In that context, I shall set out the reasons why the limitation at issue is ‘provided for by law’ (section (a)), why it respects the ‘essence’ of the right to freedom of expression (section (b)) and why, provided that Article 17 of Directive 2019/790 is interpreted correctly, it complies with the principle of proportionality (section (c)).

(a) The limitation at issue is ‘provided for by law’

92. In accordance with the Court’s settled case-law, the condition that any limitation on the exercise of fundamental rights must be ‘provided for by law’ within the meaning of Article 52(1) of the Charter, read in the light of the case-law of the ECtHR relating to the equivalent condition laid down in Article 10(2) of the ECHR, implies not only that that limitation must have a legal basis (‘existence of the law’), but also that that legal basis must have certain qualities of accessibility and foreseeability (‘quality of the law’). ( 97 )

93. In the present case, first, the limitation at issue clearly has a legal basis since it stems from provisions adopted by the EU legislature.

94. As regards, secondly, the ‘quality’ of that legal basis, I would point out that, in accordance with the case-law of the Court ( 98 ) and that of the ECtHR, ( 99 ) the legal basis entailing a limitation on the exercise of a fundamental right must be adequately accessible and foreseeable in its effects, that is to say, formulated with sufficient clarity and precision to enable the persons concerned, if need be with appropriate advice, to regulate their conduct.

95. I consider that the contested provisions are sufficiently clear and precise to meet that standard. It is true that the definition of ‘online content-sharing service provider’ provided for in Article 2(6) of Directive 2019/790 and the contested provisions contain several open concepts – ‘large amount of copyright-protected works or other protected subject matter’; ‘best efforts’; ‘high industry standards of professional diligence’, and so forth – which create a degree of uncertainty as to the economic operators concerned and the obligations imposed on them in each situation. However, according to the explanations provided by the Parliament and the Council, the use of those concepts is intended to ensure that those provisions can be adapted to different types of operators and situations, as well as changes in practice and technological developments, in order to be future-proof. In accordance with the case-law of the ECtHR, the EU legislature may, without undermining the requirement of ‘foreseeability’, choose to endow the texts it adopts with a certain flexibility rather than absolute legal certainty. ( 100 ) Moreover, the clarifications provided in this Opinion, and those which the Court will provide in its forthcoming judgment and in future decisions, will help to clarify those concepts and dispel the doubts surrounding them – which, again, satisfies the requirement of ‘foreseeability’. ( 101 )

96. That said, I note that the Court ( 102 ) and the ECtHR ( 103 ) also link to the requirement of ‘foreseeability’ the question whether the legal basis for the interference offers sufficient safeguards against the risk of arbitrary or abusive interferences with fundamental rights (in accordance with the principle of the ‘supremacy of the law’). That aspect is disputed by the applicant in the present case.

97. Nevertheless, the question whether the contested provisions offer sufficient safeguards to protect the freedom of expression of users of sharing services against excessive or arbitrary filtering and blocking measures also concerns the proportionality of the limitation stemming from those provisions. ( 104 ) Therefore, in order to avoid repetition, I shall reserve this question for the examination of the condition relating to compliance with the principle of proportionality. ( 105 )

(b) The limitation at issue respects the ‘essence’ of the right to freedom of expression

98. It should be recalled that the condition, set out in Article 52(1) of the Charter, that any limitation on the exercise of the rights and freedoms recognised by that instrument must ‘respect the essence of those rights and freedoms’ means that, where a measure undermines that ‘essence’, it cannot be justified. That measure is then deemed to be contrary to the Charter and, in the case of an act of the European Union, it must be annulled or declared invalid without it being necessary to examine the condition relating to compliance with the principle of proportionality. ( 106 )

99. Indeed, the EU legislature may limit the exercise of certain fundamental rights in the common interest in order to protect other rights and interests. It may do so, in particular, in order to protect another fundamental right. In that context, it has a certain margin of discretion to weigh up and strike a ‘fair balance’ between the various rights and interests involved. ( 107 ) Nevertheless, there is an absolute limit to that margin of discretion. The ‘essence’ of a fundamental right is an ‘untouchable core’ which must remain free from any interference. Accordingly, no objective, however legitimate it may be, justifies certain – exceptionally serious – interferences with fundamental rights. In other words, the end does not justify all means.

100. In the present case, according to the Republic of Poland, the contested provisions undermine the ‘essence’ of the right to freedom of expression. Since, in accordance with those provisions, preventive monitoring of content uploaded must be carried out by sharing service providers, this is said to call into question that right as such, on the ground that it involves an interference with that content, and its possible blocking, even before it is disseminated.

101. Like the defendants and the interveners, I do not share that view.

102. It is true that preventive measures for monitoring information are generally regarded as particularly serious interferences with freedom of expression ( 108 ) on account of the excesses they may entail. Those preventive measures are, in principle, disapproved of in a democratic society, on the ground that, by restricting certain information even before its dissemination, they prevent any public debate on the content, thus depriving freedom of expression of its very function as a vehicle for pluralism. ( 109 ) For those reasons, as the applicant points out, many Member States prohibit the general prior control of information in their respective constitutions.

103. Those considerations are fully relevant with regard to the Internet. As the applicant submits, the Internet is of particular importance to the freedom to receive and impart information and ideas. ( 110 ) That is the case, more specifically, in respect of large social networks and platforms, which, by enabling anyone to upload the content they wish and the public to access it, are ‘unprecedented’ tools for exercising that freedom. ( 111 ) In that respect, those platforms play a role in a form of ‘democratisation’ of the production of information and, although managed by private operators, they have in fact become essential infrastructures for online expression. ( 112 ) In the current state of forms of communication, the right to freedom of expression therefore entails, in particular, the freedom to access those platforms and express oneself on them, in principle, without interference by public authority. ( 113 )

104. If those authorities were to impose, directly or indirectly, ( 114 ) on intermediary service providers which control those infrastructures for expression the obligation preventively to monitor, in general, the content of users of their services in search of any kind of illegal, or even simply undesirable information, that freedom of communication would be called into question as such. In my view, the ‘essence’ of the right to freedom of expression, as provided for in Article 11 of the Charter, would be affected.

105. In that context, Article 15 of Directive 2000/31 is, in my view, of fundamental importance. By providing that intermediary providers cannot be made subject to a ‘general obligation … to monitor the information which they transmit or store’, that provision prevents online information from being subject to general preventive monitoring, delegated to those intermediaries. In so doing, it ensures that the Internet remains a free and open domain. ( 115 )

106. For that reason, I am inclined to regard the prohibition laid down in Article 15 of Directive 2000/31 as a general principle of law governing the Internet, in that it gives practical effect, in the digital environment, to the fundamental freedom of communication. ( 116 ) I note, moreover, that the Court has already brought together compliance with that freedom and that prohibition in its case-law. ( 117 ) One cannot exist without the other. It follows, in my view, that that prohibition goes beyond the scope of Article 15 of Directive 2000/31 and is binding not only on the Member States, but also on the EU legislature.

107. However, contrary to the applicant’s submissions, the fundamental right to freedom of expression, as embodied in the prohibition of ‘general monitoring obligations’, does not preclude all types of monitoring obligation.

108. As the Commission points out, in its case-law concerning injunctions which may be issued against online intermediaries, ( 118 ) the Court has acknowledged that it is possible to order an intermediary of that kind to ‘prevent’ certain offences, by carrying out a form of targeted monitoring of its service. ( 119 ) It has, accordingly, distinguished ‘general’ monitoring obligations from those which apply in ‘specific’ cases. ( 120 ) Similarly, the ECtHR does not consider preventive measures for monitoring information, including blocking orders, to be incompatible as such with Article 10 of the ECHR, provided that they fall within a specific legal framework. ( 121 ) That court even acknowledged, in its judgment in Delfi AS v. Estonia, that certain intermediaries could be expected actively to monitor their services to search for certain types of illegal information. ( 122 )

109. The applicant asserts in reply that the monitoring obligation imposed on sharing service providers under the contested provisions is indeed ‘general’. In order to ‘ensure the unavailability’ of the works and other protected subject matter identified by the rightholders and to ‘prevent their future uploads’ onto their services, those providers, in practice, have to filter all content uploaded by all users.

110. However, like the defendants and the interveners, I consider that those provisions actually impose a ‘specific’ monitoring obligation. ( 123 ) I must nevertheless acknowledge that there has been a recent development in the case-law of the Court ( 124 ) with regard to the criterion to distinguish between ‘general’ and ‘specific’.

111. Initially, the Court appeared to focus on the amount of information to be inspected. In the judgment in L’Oréal and Others, ( 125 ) the Court held that the operator of an online marketplace cannot be required to carry out ‘active monitoring of all the data of each of its customers in order to prevent any future infringement of intellectual property rights’. In the judgment in Scarlet Extended, it took the view that an Internet service provider could not be required, by means of an injunction, to install a filtering system which applies to ‘all electronic communications passing via its services’ and therefore ‘indiscriminately to all its customers’ in order to ‘identif[y] on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which infringes copyright’. ( 126 ) In the judgment in SABAM, ( 127 ) the Court adopted the same reasoning with regard to the obligation for the operator of a social network platform to install a similar filtering system. Finally, in the judgment in Mc Fadden, ( 128 ) it took the view that a wireless local area network operator could not be required to monitor ‘all of the information transmitted’ by means of that network, even if it were a question of blocking copies of a single musical work identified by the rightholder. ( 129 )

112. Now, the Court appears to focus on the detail of searches. In that regard, in the judgment in Glawischnig-Piesczek, ( 130 ) which this time concerned the area of defamation, the Court considered that the obligation, on the owner of a social network platform, to monitor all information posted on that network ( 131 ) had to be regarded as ‘specific’ on the ground that it was a matter of searching for and blocking a ‘particular’ ( 132 ) piece of defamatory information, that the service provider was not required to carry out an ‘independent assessment’ of the lawfulness of the filtered information and that, on the contrary, it could have ‘recourse to automated search tools and technologies’. ( 133 )

113. In my view, that development in the Court’s case-law ( 134 ) is justified. Although I will set out the limits below, ( 135 ) I should mention here that, to consider that a monitoring obligation is ‘general’ where it de facto obliges an intermediary provider to filter, using software tools, all of the information uploaded by the users of its service, even if it is a matter of searching for specific infringements, would regrettably amount to ignoring the technological developments which make such filtering possible and to depriving the EU legislature of a useful means of combating certain types of illegal content.

114. In the present case, in order to attain the objectives referred to in the contested provisions, sharing service providers must, admittedly, monitor all of the content uploaded by their users. However, it is a matter of searching, among that content, for ‘specific works or other subject matter’ for which the rightholders will have already communicated to them the ‘relevant and necessary information’ (Article 17(4)(b) of Directive 2019/790) or a ‘sufficiently substantiated notice’ (Article 17(4)(c)). I shall explain in more detail which content will have to be blocked in the remainder of this Opinion. ( 136 ) Nevertheless, at this stage of the analysis, those factors are sufficient, in my view, to demonstrate that those provisions do indeed lay down, indirectly, a ‘specific’ monitoring obligation and to rule out an infringement of the ‘essence’ of the right to freedom of expression. ( 137 )

115. Finally, I would point out that, although the EU legislature cannot delegate to online intermediaries the task of carrying out general preventive monitoring of information shared or transmitted through their services, it may, in my opinion, without undermining the ‘essence’ of the freedom of expression, choose to impose certain active surveillance measures concerning certain specific illegal information, on certain online intermediaries. I note, moreover, that Article 17 of Directive 2019/790 is, in that regard, in line with a series of communications and recommendations from the Commission ( 138 ) and new regulations ( 139 ) which seek, to that effect, to make certain intermediaries – in particular the large ‘platforms’ – contribute to the tackling of certain types of illegal content. Nevertheless, in each case, observance of the principle of proportionality must be ensured. This form of delegating the review of online legality ( 140 ) to certain intermediaries is accompanied, inter alia, by risks for the freedom of expression of the users of their services and cannot therefore be carried out without sufficient safeguards for those users. ( 141 )

(c) The limitation at issue complies with the principle of proportionality

116. It now remains to examine the condition relating to compliance with the principle of proportionality, which, according to Article 52(1) of the Charter, is subdivided into two sub-conditions: the limitation at issue must, first, be ‘necessary’ and, secondly, ‘genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

117. Compliance with the second sub-condition is not disputed by the parties. Having regard to the general objective pursued by Article 17 of Directive 2019/790, ( 142 ) the limitation at issue meets the ‘need to protect the rights and freedoms of others’, namely copyright and the related rights of the rightholders. I note that intellectual property is protected as a fundamental right, inter alia, ( 143 ) in Article 17(2) of the Charter and Article 1 of Protocol No 1 to the ECHR. ( 144 ) The contested provisions thus constitute ‘positive measures of protection’ adopted by the EU legislature in order to ensure that those rightholders can genuinely and effectively exercise their intellectual property rights in their relations with sharing service providers. ( 145 )

118. However, the parties disagree as to whether the limitation at issue complies with the first sub-condition. In that regard, I should point out that the examination of whether a limitation on the exercise of a fundamental right guaranteed by the Charter is ‘necessary’ within the meaning of Article 52(1) of the Charter encompasses, in reality, a review of three cumulative requirements: it is necessary to ascertain whether that limitation is (1) ‘appropriate’, (2) ‘necessary’ and (3) ‘proportionate’stricto sensu. ( 146 ) I shall examine those three requirements in turn in the following sections.

(1) The limitation at issue is ‘appropriate’

119. The requirement that the limitation at issue is ‘appropriate’ does not appear to be disputed by the Republic of Poland. In any event, like the Parliament and the Council, I consider that requirement to be met.

120. In the context of the analysis of the appropriateness of a given measure, the Court must ascertain not whether that measure constitutes the best means of attaining the objective pursued, but whether it is appropriate for contributing to the achievement of that objective. ( 147 )

121. In the present case, the monitoring obligations imposed on sharing service providers pursuant to the contested provisions are appropriate for contributing to the objective pursued by the EU legislature. By shifting the burden of monitoring their services and actively combating infringing content that may be found on them to the sharing service providers, those provisions,first, strongly encourage those providers to conclude licensing agreements with rightholders ( 148 ) and, secondly, enable those rightholders to control more easily the use of their works and subject matter on those services. ( 149 )

(2) The limitation at issue is ‘necessary’

122. The Republic of Poland submits, however, that the limitation on the exercise of the right to freedom of expression resulting from Article 17(4)(b) and (c) of Directive 2019/790, in fine, goes beyond what is ‘necessary’ to attain the objective pursued by the EU legislature. According to the Republic of Poland, the obligations laid down in points (a) and (c), in principio, of that paragraph are sufficient in that regard. First, the obligation on sharing service providers, in accordance with point (a), to make their ‘best efforts’ to obtain an authorisation from the rightholders strengthens the rightholders’ negotiating position. Secondly, the obligation on those providers, under point (c), in principio, to act expeditiously, upon receiving a sufficiently substantiated notice, to disable access to, or to remove from their websites, the notified works or other protected subject matter ensures that those rightholders are protected effectively.

123. I do not agree.

124. In that regard, I recall that the ‘necessity’ test amounts to verifying whether alternative measures exist which would be as effective as the measure chosen to attain the objective pursued whilst being less restrictive. ( 150 )

125. As the Parliament and the Council submit, in essence, a liability regime which imposes only the obligations laid down in Article 17(4)(a) and (c), in principio, of Directive 2019/790 is clearly not as effective in attaining the objective pursued by the EU legislature as a regime which, in addition, provides for the obligations under points (b) and (c), in fine, of that paragraph – even if the former obligations are effectively less restrictive in respect of the right to freedom of expression than the latter. ( 151 )

126. First, if, as the applicant submits, the obligation for sharing service providers to make ‘best efforts’ to obtain an authorisation from the rightholders already, in itself, strengthens the position of those rightholders in negotiating licensing agreements with those providers, Article 17 of Directive 2019/790 is not intended solely to ensure that those rightholders receive equitable remuneration for the use of their works and other protected subject matter on those services. The broader issue is to ensure that those same rightholders can effectively control such use and, in particular, if they so wish, prevent that subject matter from being available on such services.

127. In that respect, secondly, it cannot be denied that, as the defendants point out, a system of notice and take down, such as that resulting from Article 14 of Directive 2000/31 and reproduced, in essence, in Article 17(4)(c) of Directive 2019/790, in principio, does not allow the rightholders concerned to oppose the illegal use of their works on sharing services as effectively as a system such as that resulting from the contested provisions, which, in addition, imposes monitoring obligations on the providers of those services.

(3) The limitation at issue is ‘proportionate’ stricto sensu

128. According to the settled case-law of the Court, a limitation on the exercise of a fundamental right guaranteed by the Charter is regarded as ‘proportionate’, in the strict sense of the term, if the disadvantages caused by the measure in question are not disproportionate to the aims pursued. ( 152 )

129. In the present case, the contested provisions preclude, on the one hand, the right to freedom of expression guaranteed in Article 11 of the Charter and, on the other, the right to intellectual property, protected in Article 17(2) of the Charter. As the Parliament, the Council and the Spanish Government recall, the first right has no ‘automatic priority’ over the second. ( 153 ) The assessment of the proportionality of those provisions must be carried out, in the words of the Court, ‘in accordance with the need to reconcile the requirements of the protection of those various [fundamental] rights’ and striking a ‘fair balance’ between them. ( 154 ) Moreover, in the field of copyright law, the Court has placed particular emphasis on the need, in the digital environment, to safeguard that ‘fair balance’. ( 155 )

130. The Republic of Poland submits that the EU legislature has in fact not safeguarded that balance in Article 17 of Directive 2019/790. In its view, the harm that the contested provisions cause to freedom of expression is disproportionate to the advantages that they are likely to bring in terms of protecting intellectual property rights.

131. For my part, I consider, like the Parliament, the Council and the Commission, that the EU legislature could choose to reconsider the balance inherent in the liability regime applicable to sharing service providers (subsection (i)). The new liability regime adopted nevertheless entails significant risks for freedom of expression (subsection (ii)), requiring the provision of sufficient safeguards to minimise those risks (subsection (iii)), which, in my view, the EU legislature has done (subsection (iv)).

(i) The EU legislature could legitimately substitute a new balance for the one it had originally implemented

132. The exemption from liability, for intermediary providers, provided for in Article 14 of Directive 2000/31 reflects a balance between, inter alia, freedom of expression and intellectual property rights, as desired by the EU legislature when that directive was adopted. At that time, the EU legislature intended to promote the development of those providers in order to stimulate more generally the growth of electronic commerce and ‘information society services’ in the internal market. It was therefore important not to impose on those providers a liability which could jeopardise their activity. The interests of rightholders had to be safeguarded and balanced against the freedom of expression of Internet users in the context of the ‘notice and take down’ system and in the context of injunctions that could be issued against those providers. ( 156 )

133. As the Council submits, circumstances have undoubtedly changed since then. The emergence of ‘Web 2.0’ services has brought advantages as well as new economic and social risks, impacting on the various interests at stake. In that respect, the EU legislature was entitled to review the choices it had made almost 20 years earlier, assess those changes in circumstances and evaluate those advantages and risks. ( 157 )

134. In that regard, as the Parliament, the Council and the French Government have noted, the EU legislature has a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. ( 158 ) Adapting copyright to the digital environment and establishing, in this field, a liability regime for online sharing services which ensures a fair balance between all of the rights and interests at stake is, undoubtedly, a ‘complex’ task. ( 159 )

135. Similarly, the ECtHR recognises that public authorities have a broad margin of discretion when they have to strike a balance between different rights protected by the ECHR. ( 160 ) That discretion was all the more important in the present case since the EU legislature had to regulate, in principle, not political speeches, but the use of works and other protected subject matter. ( 161 )

136. In a context which has been widely debated, ( 162 ) the EU legislature has made a policy choice in favour of the creative industries. It has taken the view that the previous balance between the rights and interests at stake was no longer satisfactory and that, in order to continue to ensure a high level of protection for rightholders, ( 163 ) it was necessary to adopt a new liability regime for certain ‘Web 2.0’ service providers, imposing on them certain obligations to monitor the content uploaded by the users of their services. In view of the broad discretion enjoyed by the legislature, I consider that such a choice was not, in principle, disproportionate.

137. More specifically, the proportionality of the contested provisions lies, in my view, in the combination of the factors put forward by the defendants and the interveners, namely, first, the extent of the economic harm to rightholders caused by their works being uploaded illegally to online sharing services, having regard to the huge amount of content uploaded to those services and the speed of the exchange of information on the Internet, ( 164 ) secondly, the fact that, for the same reasons, the ‘notice and take down’ system makes it difficult for rightholders to control the use of their works on such services, thirdly, the difficulties they face in prosecuting the users responsible and, fourthly, the fact that the monitoring obligations concern specific intermediary providers. On the latter point, I note that sharing service providers, by the content promotion that they carry out, ( 165 ) have some influence on the information accessed by the public. Those aspects tend, to a certain extent, ( 166 ) to bring those providers into line with traditional intermediaries such as editors, and therefore it may be proportionate, so far as they are concerned, to adopt a specific liability regime which is different from that applicable to other host providers. ( 167 )

138. Moreover, as the Spanish and French Governments submit, the ECtHR, in its judgment in Delfi AS v. Estonia, held that it was not disproportionate, in the context of striking a balance between freedom of expression, within the meaning of Article 10 of the ECHR, and the right to honour guaranteed in Article 8 of that convention, to hold a large online news portal liable for failing to prevent the publication of certain types of unlawful comments left by users on its website below an article or, at least, not to have removed them on its own initiative within a short period of time.

139. In that judgment, the ECtHR focused on, first, the extent of the harm caused by such comments, given the speed at which information is circulated online ( 168 ) and, secondly, the fact that, although the ‘notice and take down’ system may in many cases be an appropriate tool for balancing the rights and interests of all those involved, it was insufficient to put an end to the serious harm resulting from such comments. ( 169 ) The ECtHR also pointed out, thirdly, that it would have been difficult for the victim to prosecute the authors of comments and, fourthly, that the operator of the news portal had a certain influence over the comments posted by users, and therefore the adoption of a specific approach to liability in respect of such an intermediary could be justified. ( 170 ) A certain analogy may therefore be drawn with the present case. ( 171 )

(ii) The risks inherent in a liability regime such as that resulting from the contested provisions

140. As the Parliament submits, in essence, in so far as the filtering to be carried out by sharing service providers pursuant to the contested provisions will prevent the dissemination on those services of content which infringes copyright or related rights, the limitation on the exercise of the right to freedom of expression resulting from those provisions is justified in respect of that content.

141. Nevertheless, the link that the EU legislature established, in those provisions, between the liability of sharing service providers and the effectiveness of such filtering entails a significant risk to freedom of expression, namely the risk of ‘over-blocking’ lawful content.

142. Such a risk of an ‘over-blocking’ exists, generally, where public authorities hold intermediary providers liable for illegal information provided by users of their services. In order to avoid any risk of liability, those intermediaries may tend to be overzealous and excessively block such information where there is the slightest doubt as to its lawfulness. ( 172 )

143. In the present case, the risk is, more specifically, that, in order to avoid any risk of liability vis-à-vis rightholders, the sharing service providers systematically prevent the making available, on their services, of all content which reproduces works and other protected subject matter for which they have received the ‘relevant and necessary information’ or a ‘sufficiently substantiated notice’ from those rightholders, including content which does not infringe their rights. ( 173 )

144. In addition to the fact that some users wishing to upload the content concerned may have a licence for the works and subject matter in question, the rightholders do not have an absolute monopoly over the use of their protected subject matter. In that regard, Article 5(3) of Directive 2001/29 contains a list of exceptions and limitations to the exclusive right of ‘communication to the public’. Those exceptions and limitations ensure, in principle, a ‘fair balance’ between, on the one hand, the interest of those rightholders in the protection of their intellectual property and, on the other, the protection of the interests and fundamental rights of users of protected subject matter, as well as the public interest ( 174 ) – inter alia public access to culture. In particular, a number of those exceptions and limitations, including those relating to quotations, criticism and review ( 175 ) and those relating to caricature, parody and pastiche, ( 176 ) in their respective fields of application, accord users’ rights to freedom of expression and creation precedence over the interests of those rightholders.

145. Specifically, a significant proportion of the content uploaded by users to sharing services consists of uses, or even creative reappropriations, of works and other protected subject matter which may be covered by those exceptions and limitations. ( 177 )

146. Nevertheless, the question as to whether such an exception or limitation is applicable to particular content depends on the context and requires some analysis. ( 178 ) The line between legitimate use and infringement may, in different cases, be debatable. ( 179 ) In all of those ambiguous situations, sharing service providers may find it easier to prevent the content concerned from being made available rather than having to claim themselves, in the context of a possible action for liability brought by the rightholders, that those exceptions or limitations apply. ( 180 )

147. The risk of ‘over-blocking’ which I have just described is increased, in the present case, by the fact that the conditions for exemption laid down in Article 17(4)(b) and (c), in fine, of Directive 2019/790 in fact require, in many cases, sharing service providers to use automatic content recognition tools.

148. In that regard, it is important not to lose sight of the inherent limitations of the tools in question, limitations which the applicant duly pointed out and which, moreover, have already been noted by the Court in the judgments in Scarlet Extended and SABAM. ( 181 ) Automatic content recognition tools detect content and not copyright infringements. Such tools, especially those which use ‘digital fingerprinting’ technology, are capable of detecting matches, thus they can recognise that the content of a given file reproduces, in whole or in part, that of a reference file. ( 182 ) However, as the Republic of Poland submits, those tools are currently not capable of assessing the context in which the reproduced work is used and, in particular, of identifying the application of an exception or limitation to copyright. ( 183 ) The risk of ‘over-blocking’ is all the more significant as the ability of such tools to recognise matches in ever shorter extracts (for example, a few seconds for a phonogram) increases. Their use therefore entails the risk of depriving users of a space for expression and creation which is permitted by those exceptions and limitations. ( 184 ) Moreover, the ability of automatic recognition tools to identify infringing content depends on the accuracy and veracity of information provided by rightholders. The use of those tools may therefore lead to unjustified complaints concerning, for example, works in the public domain, ( 185 ) on the basis of incorrect or improper reference information (so-called risk of ‘over-complaining’). ( 186 )

(iii) The need to provide sufficient safeguards to minimise those risks

149. In view of the risks of ‘over-blocking’ described in the subsection above, a liability regime such as that resulting from the contested provisions must, in my view, be accompanied by sufficient safeguards to minimise those risks and, therefore, ensure that the extent of the interference with freedom of expression is precisely circumscribed. ( 187 ) Generally speaking, any kind of delegation, by public authorities, of the review of online legality to intermediary providers, ( 188 ) in the form of monitoring obligations which are imposed directly or indirectly on those intermediaries, must be accompanied by such safeguards.

150. More specifically, I consider that such a regime must form part of a legal framework laying down clear and precise rules governing the scope and application of the filtering measures to be implemented by the service providers concerned, so as to ensure that the users of those services have effective protection against the improper or arbitrary blocking of information they wish to upload. ( 189 )

151. I would also point out that, where the limitation of fundamental rights stems from the EU legislation itself, and is therefore attributable to the EU legislature, as is the case here, ( 190 ) the EU legislature bears a significant share of the responsibility in that regard. It cannot, in such a case, leave to the Member States – or, a fortiori, the service providers responsible for implementing that legislation – the task of establishing such safeguards. On the contrary, it must define at the very least its substance. ( 191 ) That said, since the present case concerns a directive which, moreover, concerns a technical field, certain detailed rules for its application will have to be specified by the Member States – and by the Commission. ( 192 )

152. I would add that the need for the EU legislature to set out the substance of those safeguards is essential in order to ensure the uniform application of EU legislation in all the Member States – such uniformity being all the more necessary since what is at issue in the present case is a harmonisation directive adopted on the basis of Article 114 TFEU. Sharing service providers, which operate internationally, should not be subject to 27 national liability regimes which may differ as to the extent of the filtering imposed on them. Above all, the users of those services should enjoy substantially identical protection against abusive or arbitrary blocking measures, irrespective of the Member State in which they are located.

153. To sum up, although the EU legislature has a wide margin of discretion in deciding on the principle of a liability regime such as that laid down in the contested provisions, it may not, however, dispense with sufficient safeguards to minimise the resulting risks to freedom of expression. In my view, it is for the Court to scrutinise compliance with that requirement. ( 193 )

(iv) The safeguards provided for in the present case

154. The Republic of Poland submits that the EU legislature has not met this requirement in the present case. In its view, the contested provisions are not accompanied by any safeguards capable of circumscribing the extent of the interference with the freedom of expression of users of sharing services.

155. By contrast, the defendants and the interveners submit that Article 17 of Directive 2019/790 contains a ‘complete system of safeguards’. They state that the contested provisions are, in fact, inseparable from paragraphs 5, 7, 8 and 9 of that article. Those paragraphs establish clear and precise rules defining the scope and application of the measures which must be implemented by sharing service providers and, in so doing, maintain a ‘fair balance’ between intellectual property rights and freedom of expression.

156. Article 17(5) of Directive 2019/790, which, I reiterate, states that the measures to be taken by each supplier must be assessed, in the light of the principle of proportionality, with regard to factors such as the ‘size of the service’ or the ‘cost’ of available tools, seems to me to be more relevant to the question of compliance with the freedom to conduct a business, which is not the subject of the present case, than to freedom of expression. I therefore do not consider it necessary to revisit that paragraph.

157. However, paragraphs 7, 8 and 9 of that article do indeed, in my view, contain meaningful safeguards to protect the users of sharing services against measures involving the improper or arbitrary blocking of their content. I shall therefore examine them in the following subsections.

– The right to legitimate uses of protected subject matter (paragraph 7) and the complaint mechanism (paragraph 9)

158. The defendants and the interveners have rightly pointed out that one of the main safeguards intended to limit the risk of sharing service providers preventing, pursuant to the contested provisions, the availability on their services of content which lawfully reproduces the works and other protected subject matter identified by rightholders is contained in Article 17(7) of Directive 2019/790.

159. First, the first subparagraph of that paragraph provides that ‘the cooperation between … sharing service providers and rightholders ( 194 ) shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation’. ( 195 )

160. Secondly, in accordance with the second subparagraph of that paragraph, Member States must ensure that users are able to rely on the exceptions and limitations relating to (a) quotation, criticism and review and (b) use for the purpose of caricature, parody or pastiche ( 196 ) when they upload content to sharing services.

161. It follows that the EU legislature has expressly recognised that users of sharing services have subjective r