UGC Creation and Dissemination – The Role of Platforms, Copyright Holders and the Court of Justice in Safeguarding Freedom of Expression and Information

With the erosion of the traditional safe harbour for hosting and the introduction of licensing and filtering obligations in Art. 17 of the CDSM Directive, EU copyright law has substantially enhanced the risk of inroads into freedom of expression and information: users seeking to participate in the online debate may be confronted with filtering systems that block permissible parodies and pastiches even though no copyright infringement can be found. Instead of putting responsibility for detecting and remedying human rights deficits in the hands of the state, the EU legislature prefers to outsource this responsibility to private entities, in particular platforms for user-generated content. Moreover, the CDSM Directive conceals potential human rights violations by leaving countermeasures to users. A closer look at the human rights obligations imposed on platforms, and the reliance on user activism, reveals a worrying tendency to outsource the task of human rights protection and add a gloss of proportionality and diligence safeguards – without ensuring effective control by public authorities that are bound to foster and support freedom of expression and information. The risk of human rights encroachments is exacerbated by the fact that, instead of exposing and discussing the corrosive effect of human rights outsourcing, the CJEU has rubberstamped the regulatory approach in Art. 17 CDSMD. In its Poland decision, the Court has even qualified problematic features of the outsourcing and concealment strategy as valid safeguards against the erosion of freedom of expression and information. Using inspiring joint work with Reto Hilty as a basis, the analysis sheds light on these problematic developments in the area of platform liability and user-generated content.