A new liability paradigm for online platforms in EU copyright law

This chapter explores the transformative impact of art. 17 of the Copyright in the Digital Single Market Directive on the liability of online content-sharing platforms and its potential impact on users’ rights and freedoms. The analysis traces the evolution of EU copyright law to delineate the legal framework for primary and secondary liability of such platforms leading up to the introduction of art. 17. It then examines the new regime, explaining how it reflects a departure from prior rules and constitutes a novel liability paradigm tailored for online content-sharing platforms. The chapter contends that this shift, in line with the Digital Services Act's (DSA) “enhanced responsibility” approach, entails important trade-offs. It presents challenges to legal certainty, given the complexity of art. 17 and its potential overlaps with the DSA. Moreover, the legal design of art. 17 and the DSA may lead to privatised algorithmic content moderation, outsourcing fundamental rights balancing to platforms and users, risking users’ freedom of expression. The Court of Justice's ruling in Case C-401/19 Poland v Parliament and Council is discussed as illustrative of this shift, to the extent it affirms art. 17's liability design without sufficiently addressing associated fundamental rights risks.