Indeed, RL 2019/790 introduces a new specific liability regime for operators of online platforms for works that are unlawfully put online by the users of these platforms. This directive, which must be transposed into national law by 7.6.2021 at the latest, obliges operators, among other things, to obtain the consent of their rights holders for works placed online by users. In the current case, however, the ECJ has yet to apply Directive 2000/31 on electronic commerce, Directive 2001/29 on the harmonization of certain aspects of copyright, and Directive 2004/48 on the enforcement of intellectual property rights.

In his Opinion, Saugmandsgaard Øe therefore proposes that the ECJ rule that platforms are not directly liable for copyright infringement when users of their platforms unlawfully upload protected works, since they would not themselves be making a “communication to the public.” The primary liability is borne solely by the users. The process of posting a file on a platform, once initiated by the user, is automatic, without the operator of that platform selecting or otherwise determining the published content. The prior control does not constitute a selection as long as it is limited to the detection of illegal content and does not reflect the will of the operator to publicly reproduce certain content.

In addition, operators of platforms could benefit from the exemption from liability if they had not played an active role. The exemption in question provides that the provider cannot be held responsible for the information stored unless, after becoming aware of the illegality of that information, it did not immediately remove that information or make it inaccessible. The exemption covers both primary and secondary liability for the information provided by these users and the activities they initiate.

In the vast majority of cases, the ECJ agrees with the opinion of the Advocate General.