Towards a Virtuous Legal Framework for Content Moderation by Digital Platforms in the EU? The Commission's Guidance on Article 17 CDSM Directive in the Light of the YouTube/Cyando Judgment and the AG's Opinion in C-401/19

摘要

This article analyses the European Commission's Guidance on art. 17 CDSM Directive, the CJEU's YouTube/Cyando judgment and the AG's Opinion in (C-401/19). Together, these documents outline a legal framework for content moderation for digital platforms that tries respecting the copyright-inherent balances and minimising its negative impacts, without however eliminating all problematic issues relating to fundamental rights and other general principles of EU law. Article 17's compatibility with freedom of expression seems extremely fragile as it is entirely conditional on how it is implemented by Member States and what safeguards they will provide against overblocking of legitimate uses. Therefore, it is argued that in order to establish a virtuous content moderation system for digital platforms in the EU, it would have been essential to address more fundamental concerns around art. 17, particularly the fact that privately operated algorithmic tools will mainly be deciding what content should be available online, instead of independent assessors making such decisions based on copyright law's equilibrium, and to take into account of the inherent limits and flaws of technology.