Poland’s Challenge to EU Directive 2019/790: Standing up to the Destruction of European Freedom of Expression

Authors

Michaela CloutierFollow

Abstract

In 2019, the European Parliament and Council passed Directive 2019/790. The Directive’s passage marked the end of a fouryear- long legislative attempt to impose more liability for copyright violations on Online Service Providers, an effort which was controversial from the start. Online Service Providers fear that the 2019 Directive, especially its Article 17, will completely change the structure of liability on the Internet, forcing providers to adopt expensive content filtering systems. Free speech advocates fear that ineffective filtering technology will infringe upon Internet users’ rights to express themselves, and legal scholars have pointed out the Directive’s inconsistency with prior European legislation and case law. The final version of the Directive does not contain an explicit proactive monitoring requirement for Online Service Providers, but criticism of the Directive persists. In May of 2019, Poland brought an official action in the Court of Justice of the European Union (CJEU) against the EU Parliament and Council, alleging that the Directive conflicts with rights protected under the Charter of Fundamental Rights of the European Union, specifically freedom of expression.

This Comment first discusses the text of the Charter of Fundamental Rights and the balance that courts had previously struck between conflicting fundamental rights implicated by three earlier EU Directives. Next, this Comment examines CJEU case law on intermediary liability for copyright violations, especially as those decisions relate to the intersection of intellectual property rights and freedom of expression. Finally, this Comment analyzes Poland’s challenge in light of the prior statutory framework and the CJEU’s fundamental rights jurisprudence to identify some of the salient issues in the pending case on the Directive’s legality.

Recommended Citation

Michaela Cloutier, Poland’s Challenge to EU Directive 2019/790: Standing up to the Destruction of European Freedom of Expression, 125 Dick. L. Rev. 161 (2020).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol125/iss1/5