European Union: Adopted EC guidance allows extensive blocking of user uploads through the "earmarking" of content

The European Commission publishes its guidance on art. 17 of the EU DSM Directive, the main issue being the compatibility of automated content recognition technology (upload filters) with fundamental EU rights. Art. 17(4) DSM Directive introduces platform liability for copyright infringements, causing platforms to use automated content recognition (upload filters) for content flagged by rightsholders, while art. 17(7) prohibits the blocking of content that does not infringe copyright due to the cooperation of platforms and rightsholders, in order to prevent overblocking (which would infringe fundamental EU rights, as argued in the Polish challenge to art. 17). The final guidance shifts from the EU`s previous position that automated content recognition technology is compatible with fundamental rights if only manifestly infringing content is blocked (introducing ex-ante safeguards against overblocking). The final guidance allows rightsholders to "earmark" protected content, whose unauthorised online availability would cause them "significant economic harm", as part of the process of providing platforms with information for the application of upload filters (art. 17(4)(b)/(c)). Such earmarked content is subject to particular care and diligence: Platforms are deemed as non-compliant and thus liable, if they make such content available, even though it is not "manifestly" infringing. Since the final guidance does not establish requirements for such earmarking, it gives rightsholders the possibility to earmark any content, factually circumventing the requirement the principle of only blocking "manifestly" infringing content.