Platform operators can take a breath after the Advocate General published his opinion in two related proceedings before the CJEU (opinion of 16 July 2020 in joined cases C‑682/18 and C‑683/18). Platforms such as YouTube and Uploaded do not yet have to assume direct liability for the content of their users. However, this will change with the implementation of the controversially discussed new copyright directive (Dir. 2019/790/EC), which the EU Member States must have implemented by June 2021, at the latest.

The considerations brought forward by Advocate General Saugmandsgaard Øe have again highlighted how relevant and important the discussion surrounding provider liability remains, especially with regard to the much debated Directive on Copyright in the Digital Single Market (Dir. 2019/790/EC).

Advocate General’s Opinion

In the Advocate General's view, pursuant to the current legal situation, the illegal uploading of protected content by platform users does not result in the direct primary liability of the platform operators, as they merely act as intermediaries. Only the uploading users themselves are primarily liable and commit a "communication to the public" within the meaning of the copyright directive (Dir 2001/29/EC).

This will, however, change with the implementation of the new Directive, which EU Member States must implement by June 2021. According to its requirements, platform operators will be obliged to obtain the permission of rights holders for the online publication of works uploaded by their users (e.g. through licensing agreements). Failure to do so can result in the primary liability of host providers.

Similarly, Øe underlines that right-holders are not currently defenseless against platform operators. They can therefore demand that operators remove or block such infringing content without delay. Failure to take such action despite knowledge of the content would risk the loss of their exemption from liability under Article 14 (1) of the E-Commerce Directive (Dir. 2000/31/EC).

A final decision by the CJEU is still pending and can be expected in a few weeks’ time.