Wednesday, 19 June 2019

General Court confirms invalidity of (one of the) adidas three-stripe mark(s)

Earlier today, the General Court (GC) issued a keenly-awaited ruling (T‑307/17), in which it upheld the earlier decision of the EUIPO Second Board of Appeal (R 1515/2016-2), and found this three-stripe EU trade mark (EUTM) owned by adidas:
invalid. In a nutshell, the GC found that:
  • The trade mark at issue would not be a pattern mark, but an ordinary figurative mark; 
  • The forms of use, eg colour scheme, of said trade mark should not to be taken into account; and 
  • adidas failed to prove acquired distinctiveness throughout the EU.
Let's see more in detail how the court reasoned.

Background

In 2014. adidas obtained an EUTM for the sign represented above, described as consisting of "three parallel equidistant stripes of identical width, applied on the product in any direction" for goods in Class 25 of the Nice Agreement.

Also that year, Shoe Branding Europe filed an application for a declaration of invalidity of the EUTM pursuant to what is now Article 59(1)(a) EUTMR, in conjunction with Article 7(1)(b) therein.

In 2016, the EUIPO Cancellation Division granted the application and held adidas's EUTM invalid due to lack of distinctive character, both inherent and acquired through use.

adidas appealed and, while it did not dispute the lack of inherent lack of distinctiveness, it submitted that its EUTM had acquired distinctiveness through use. The appeal was rejected, and adidas brought the matter before the GC.

Unjustified dismissal of some of the evidence

adidas submitted that the EUIPO Board of Appeal had unduly dismissed evidence on the ground that said evidence was related to signs other than the mark at issue. According to adidas, by doing so the Board both misinterpreted the mark at issue and misapplied the ‘law of permissible variations’. 

Misinterpretation of the mark at issue: a 'surface pattern'?

With regard to the former, adidas argued that the Board had incorrectly assumed that the mark at issue was only claimed in specific dimensions and, in particular, in a specific ratio of height to width. Instead, the Board should have treated it as a surface pattern that may be reproduced in different dimensions and proportions depending on the goods on which it is applied. 

The GC disagreed with adidas, and noted how the EUIPO can only consider what is set out in the application for registration and any description provided of said sign. Also recalling the well-known Sieckmann decision, the GC noted how
it is for the trade mark applicant to file a graphic representation of the mark corresponding precisely to the subject matter of the protection he wishes to secure. Once a trade mark is registered, the proprietor is not entitled to a broader protection than that afforded by that graphic representation [...].
The court also noted that the EUTM had been registered as a figurative mark, and that no indications were provided that it should be intended as a pattern mark. This 'classification' means that, in principle, registration is in the proportions shown in the relevant graphic representation. This conclusion cannot be questioned by rulings like Apple [Katpost here]:
That judgment merely states that a design may be registered as a trade mark, even though it bears no indication of the size and proportions of the object which it represents. However, that judgment does not imply that a mark may be registered without defining the proportions of the sign itself.
Misapplication of the ‘law of permissible variations’

Turning to the alleged misapplication of the ‘law of permissible variations’, that is the possibility of using a mark with variations that do not affect its distinctive character, the Board had considered that:
  • where a trade mark is extremely simple, even a slight difference could lead to a significant alteration to the characteristics of the mark as it had been registered; 
  • use of the mark at issue in the form where the colour scheme is reversed necessarily alters the distinctive character of that mark;
  • some of the evidence showed a sign with two instead of three stripes and; 
  • the use of sloping stripes altered the distinctive character of that mark.

The Board had considered the following as examples of evidence that failed to show genuine use of the mark at issue:


The GC sided with the Board and concluded that this had rightly dismissed the images above on the ground that they were related to signs other than the mark at issue. Consequently, no infringement of the ‘law of permissible variations’ had occurred.

Error of assessment regarding the acquisition of distinctive character through use

adidas also claimed that the Board had erred in finding that the applicant had not shown that the mark at issue had acquired distinctive character as a result of the use which had been made of it within the EU.

The court noted at the outset that:
in order to demonstrate that the mark at issue has acquired distinctive character, the applicant cannot rely on all of the evidence which shows a mark consisting of three parallel equidistant stripes. Indeed, it follows from the answer to the first part of the plea in law that the relevant evidence is only that which shows the mark at issue in its registered form or, failing that, in forms which are broadly equivalent, which excludes forms of use where the colour scheme is reversed or which fail to respect the other essential characteristics of the mark at issue.
It then recalled the principles established in earlier case law re acquired distinctiveness, and reviewed the evidence submitted by adidas. The court noted that it follows from the unitary character of the EU trade mark that, in order to be accepted for registration, a sign must have distinctive character, inherent or acquired through use, throughout the EU.

This does not mean that proof is required for each individual Member State. However, "the evidence submitted must be capable of establishing such acquisition throughout the Member States of the European Union".

In this case, the only evidence which is, to some extent, relevant were 5 market surveys completed in only 5 Member States. This was deemed insufficient to prove acquired distinctiveness throughout the EU.

Comment

Is this the end of the adidas three-stripe trade mark(s)? Of course not. Not only does adidas own several three-stripe marks [just check the EUIPO database for EU registrations] which are not affected by today's ruling, but the decision might be appealed one last time to the Court of Justice of the European Union. The last word is thus yet to be told.

In any event, today's ruling is a useful reminder that the 'law of permissible variations' is not limitless and must be applied having specific regard to the mark at issue. In addition, evidence serves indeed to prove something: parties must be careful about the type that they submit, no matter how well-known the sign at issue is perceived to be. Though in a different context, readers might in fact remember that not long time ago another arguably well-known trade mark, McDonald's BIG MAC, suffered from problems of poor evidence. The result was that:
an overall assessment of the evidence does not allow the conclusion, without resorting to probabilities and presumptions, that the mark was genuinely used during the relevant period for the relevant goods or services
[Originally published on The IPKat on 19 June 2019] 

Sunday, 16 June 2019

DSM Directive Series #6: 'hyperlinking' in the press publishers' right

The IPKat's favourite type of link
The IPKat is back with the 6th instalment of the DSM Directive (Directive 2019/790) series [previous episodes herehereherehere, and here]. Today's topic is once again Article 15 and the new press publishers' right. 

Among other things, the protection granted under Article 15(1), that is the right of EU-based press publishers to control the reproduction and making available for online use of their press publications by information society service providers, "shall not apply to acts of hyperlinking" (Article 15(1), subparagraph 3).

Recital 57 substantially states the same thing, by providing that "[t]he rights granted to publishers of press publications should not extend to acts of hyperlinking."

Hyperlinks and the press publishers' right: from the original proposal to the final version

The final version of the directive is not dissimilar from the original EU Commission's proposal on this point. However, unlike the final version, the original proposal included the following disclaimer (Recital 33):
The protection does not extend to acts of hyperlinking which do not constitute communication to the public.
As readers may know, the exclusion of linking from the scope of the right was also motivated by political reasons, as those opposing the directive and what is now Article 15 dubbed this proposal 'link tax' early on in the process. 

Unlike the original version, the final version of Article 15 appears to exclude all acts of hyperlinking from the scope of the press-publishers' right, irrespective of whether they amount to communication to the public under the InfoSoc Directive. 

What remains unclear, however, is why EU legislature employed the technologically-specific term 'hyperlink' rather than, eg, the more technologically-neutral term employed by, first, the referring court and, then, the Court of Justice of the European Union (CJEU) in Svensson, that is 'clickable link' (or 'Internet link').

A hyperlink is in fact defined as 
an element in an HTML document that links to either another portion of the document or to another document altogether. On webpages, hyperlinks are usually colored purple or blue and are sometimes underlined.
In this sense, while 'clickable link' or 'Internet link' appears quite general, a 'hyperlink' is a specific type of 'clickable link' or 'Internet link'.

Does that mean that what Article 15 excludes from its scope is only 'hyperlinks' and not other types of 'clickable links'?

So, for instance, if an information society service provider provided this link:


Article 15 would not apply.

However, if an information society service provider provided this link:



then would Article 15 apply (it is to be noted that also videos can fall within the scope of Article 15: see Recital 56)?

CJEU case law

In its first decision tackling the treatment of 'clickable links' under the InfoSoc Directive, the CJEU stated [paras 29-30] that it would make no difference that
when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.
Indeed,     
That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. 
In its subsequent (succinctly reasoned) order in BestWater (a case concerning a framed link to a YouTube video uploaded without the rightholder's consent), the CJEU relied on this part of the Svensson judgment to conclude that the treatment of framing should be the same as of hyperlinks.

In the final judgment of the linking trilogy, GS Media, the CJEU did not have the chance to consider the issue of whether the type of 'clickable link' at issue makes a difference, also because the questions of the referring court employed specifically the term 'hyperlinks'. In any case, the focus of that referral was on a different issue, that is the treatment of linking to content posted without the rightholder's consent.

So?

Several commentators have suggested, basing their conclusion on Svensson and BestWater, that indeed the type of 'Internet link' at issue makes no difference in the legal assessment.

However, it is apparent that the Swedish court in Svensson did not clarify what type of link was at issue in the background national proceedings: it was "not clear from the documents before the Court", wrote the CJEU in the resulting judgment [para 29].

It is curious, to say the least, that when it came to drafting what would become the DSM Directive, the EU Commission first and then EU legislature employed such a specific language with regard to linking and the scope of Article 15. 

It would not be surprising if relevant rightholders argued that what Article 15 excludes is only hyperlinks, but other types of links (eg, framing, embedding) would fall within the scope of the right. What would then remain to be ascertained is whether such links amount to 'making available' within Article 3(2) of the InfoSoc Directive [this is yet another fairly odd choice, as so far - with the exception of C More, in which the Court clarified that communication to the public and making available are not exactly the same thing: see para 24 - the CJEU has considered linking under Article 3(1) of the InfoSoc Directive].

Similarly, it would not be surprising if someone also argued that a link like the second one posted above would not just entail a 'making availabe', but also an act of reproduction. In this case, the further point to ponder would be whether the reproduction of a still frame from a video could be considered a 'very short' extract and be, thus, also excluded from the scope of Article 15 ... But this is perhaps a story for another time!

***

The IPKat's DSM Directive Series

Tuesday, 11 June 2019

Italian court confirms that unauthorized use of Audrey Hepburn's likeness infringes (post mortem) image rights

One of the T-shirts produced by the defendant

Italian image rights protection is notoriously quite strong and is also available post mortem. In the latter case, consent to the use of one's own likeness must be obtained, in the first place, from the person's spouse and children.

An estate that has been quite keen on enforcing post mortem image rights is that of actress Audrey Hepburn. Not all readers might be aware of the fact that the late icon had a close connection with Italy: in fact, her second husband was Italian psychiatrist Andrea Dotti. They had a soon together, Luca Andrea, who was born in 1970.

The IPKat has already reported on a case brought jointly by Luca Andrea Dotti and Audrey Hepburn's other son, Sean Hepburn Ferrer, and decided by the Court of First Instance of Milan in 2015 concerning unauthorized evocation (not even direct use) of the likeness of Audrey Hepburn in an advertisement. 

The Milan court held that even such use of someone's likeness might violate that person image rights, as per Article 10 of the Italian Civil Code and Article 96 of the Italian Copyright Act.

Now Luca Andrea Dotti and Sean Hepburn Ferrer have obtained another victory against the unauthorized use of their mother's likeness: this time from the Turin Court of First Instance (sentenza 940/2019, RG 12322/2017 - thanks to the MartiniManna team for commenting on this decision on their very useful blog).

Let's see what happened.

Background

In 2017, Audrey Hepburn's sons sued a company over the unauthorized commercial use of their mother's likeness on T-shirts, and sought damages for EUR 72,500. The T-shirts commercialized by the defendant company, in which Audrey Hepburn is represented with her middle finger up or covered in tattoos or with big chewing-gum bubbles, were very successful, and even the orders placed by the claimants were actioned late due to the need of re-stocking the items.

The cease-and-desist letters sent by Hepburn's sons were devoid of effect. Hence, the proceedings before the Turin court.

Among the arguments advanced by the defendant there was the one according to which no consent was required from Hepburn estate, in that Article 97(1) of the Italian Copyright Act provides that [the translation from Italian is mine]:
The consent of the person whose likeness is reproduced is not required when the reproduction of said likeness is justified by the notoriety of that person or their public role, by needs of justice or police, by scientific, educational or cultural objectives or when the reproduction is linked to facts, events, ceremonies that are of public interest or took place in public.
The defendant further argued that:

  • Use of Audrey Hepburn's image on its T-shirts was not aimed at causing prejudice (which in any case should be assessed in light of the specific circumstances of the case at issue) or blurring the image of the actress, but rather celebrating female empowerment.  
  • Use of Hepburn's likeness should not be intended as a slavish reproduction of her likeness, but rather as a "different and completely original work" (on the possibility of protecting something that is also potentially infringing, see this recent decision of the Italian Supreme Court). 

Unauthorized use of The IPKat's likeness
in 
Breakfast at Tiffany's
The decision

The Turin court found all arguments advanced by the defendant 'groundless'. 

With regard to Article 97 of the Copyright Act, the court recalled that the Italian Supreme Court has clarified how this provision, it being a derogation from the general rule of image rights protection, should be interpreted strictly. As a result,
the unauthorized use of someone's likeness is only lawful insofar as and to the extent that it fulfils public information needs, not also when it pursues other objectives (advertising, commercial, etc).
The court also found that the particular way in which Audrey Hepburn was represented on the T-shirts would also cause prejudice to her honour and reputation. As such, the claimants were entitled to repress said use in light of Article 97(2) of the Copyright Act.

As a result, the court found that Audrey Hepburn's image rights had been violated, and ordered the defendant to pay the claimants EUR 45,000 as economic damage, determined on the basis of the 'price of consent', that is the price of a hypothetical licence fee. 

Comment

The decision of the Turin court is not surprising, as it is in line with a consolidated string of cases concerning image rights protection.

Not only does this decision confirm that image rights protection can go quite far, but also stresses once again the gap in protection between continental European countries which, like Italy, have self-standing and consolidated image rights and countries, like the UK, where such protection is unavailable. Readers will remember that in Fenty v Arcadia both the High Court and the Court of Appeal noted how image rights as such do not exist in that country [see here].

With regard to Italian law, one might consider whether the limitation - confirmed by the Turin court - of the lawfulness of the unauthorized use of one's own image to public interest scenarios is fully compliant with Article 10 of the European Convention of Human Rights (ECHR). In its case law, in fact, the European Court of Human Rights has reiterated on multiple occasions that freedom of expression and information might also encompass commercial scenarios. However, that court has also confirmed that, while Article 10(2) ECHR leaves little room for restrictions on freedom of expression in political matters, Contracting States enjoy a wide margin of discretion when they regulate freedom of expression in the commercial field (see, eg, Ashby Donald, para 39).

In any event, the potential conflict between freedom of expression - whether commercial or artistic - and image rights has also emerged elsewhere, including in the US. Last year, The IPKat reported on the decision of Court of Appeal of the State of California - Second Appellate District, which found that “[T]he right of publicity cannot, consistent with First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals.” (the case was initially brought by Olivia de Havillandwho famously starred alongside Vivien Leigh and Clark Gable in Gone with the Wind, against FX, the producers of TV miniseries Feud: Bette and Joan over a disagreeable portrayal of herself thorough the eponymous character as played by Catherine Zeta-Jones).

Image rights, honour and reputation, freedom of expression, misappropriation, free riding ... there is  a bit of everything in this area of IP law! 

[Originally published on The IPKat on 11 June 2019]

Wednesday, 5 June 2019

“The internet’s not written in pencil, it’s written in ink” … yet content removal can be done on a worldwide basis, says AG Szpunar

Also The IPKat has a Facebook page
(not used for libellous and defamatory
comments alas though) 
When it comes to content removal in the context of an injunction, how is this to be done in order to comply with the prohibition of a general monitoring obligation, as per Article 15 of the E-commerce Directive

This, in a nutshell, is the issue at stake in Facebook, C-18/18, a referral for a preliminary ruling from the Austrian Supreme Court made in the context of national proceedings concerning defamatory comments published on Facebook. 

Yesterday, Advocate General (AG) Szpunar delivered his Opinion, which opens with a quote from The Social Network (the film about the beginning of Facebook): “The internet’s not written in pencil, it’s written in ink”. Indeed, as the AG effectively summed up, this case concerns: 
whether a host which operates an online social network platform may be required to delete, with the help of a metaphorical ink eraser, certain content placed online by users of that platform.
The Opinion in brief 

In his Opinion, AG Szpunar advised the Court of Justice of the European Union (CJEU) to rule that Article 15 of the E-commerce Directive does not preclude a host provider from being ordered – by means of an injunction – to seek and identify, among all the information disseminated by users of its service, the information identical to the information that has been found to be illegal by a court that issued that injunction. With regard to equivalent information, the duty the host provider to search and identify such information is only in relation to the information disseminated by the user that disseminated that illegal information. To this end, the effects of the relevant injunction must be clear, precise and foreseeable, and the authority that issues such injunction must also take into account and balance different fundamental rights, as well as complying with the principle of proportionality. 

In relation to the territorial scope of an injunction, the AG noted that the E-commerce Directive is silent on this point. Hence, an injunction can also impose removal of information on a worldwide basis. 

Let’s see a bit more in detail what the case is about and how the AG reasoned. 

Background 

The background national proceedings relate to an application for an injunction that an Austrian politician sought against Facebook, following failure by the latter to remove information posted by a user and containing disparaging comments relating the politician. The Vienna Commercial Court issued the requested injunction, and ordered Facebook to remove the relevant content. Facebook complied with the injunction, but only disabled access to the content in Austria. 

On appeal, the Vienna Higher Regional Court upheld the order made at first instance as regards identical allegations, and dismissed Facebook’s request that the injunction be limited to Austria. However, that court ordered the removal of equivalent content should be only done in relation to content notified by the applicant to Facebook. 

Both parties appealed to the Austrian Supreme Court, which decided to seek guidance from the CJEU regarding both the content (identical and equivalent information) and scope (territorially limited or worldwide) of an injunction like the one at issue in this case. These are the questions referred to the highest EU court: 

(1) Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information: 
(a) worldwide? 
(b) in the relevant Member State? 
(c) of the relevant user worldwide? 
(d) of the relevant user in the relevant Member State? 
(2) In so far as Question 1 is answered in the negative: Does this also apply in each case for information with an equivalent meaning? 
(3) Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance? 
AG Maciej Szpunar
The analysis of AG Szpunar 

The AG began his analysis by noting that, “[i]rrespective of the doubts that one might have in that regard”, Facebook is a host provider within the meaning of Article 14 of the E-commerce Directive potentially eligible for the safe harbour protection offered therein. This conclusion, in any case, does not remove the possibility for such a subject to be the addressee of an injunction. 

It is true that the conditions and detailed procedures applicable to injunctions against intermediaries are a matter of national law. However, the rules set by individual Member States must comply with the requirements laid down under EU law, in particular in the E-commerce Directive. 

Prohibition of general monitoring 

In this sense, this piece of EU legislation (Article 15(1), read in combination Article 14(3)) prohibits the imposition of a general monitoring obligation on, inter alia, host providers. If a general monitoring obligation was imposed, this would also remove the safe harbour, as the host provider targeted by such an injunction would no longer be neutral: 
the activity of that host provider would no longer retain its technical, automatic and passive nature, which would imply that the host provider would be aware of the information stored and would monitor that information. Consequently, the implementation of a general monitoring obligation, imposed on a host provider in the context of an injunction authorised, prima facie, under Article 14(3) of Directive 2000/31, could render Article 14 of that directive inapplicable to that host provider.
Possibility of specific (targeted) monitoring and need for a global assessment 

The E-commerce Directive (Recital 47 and Articles 14(3) and 18) does not however prohibit monitoring obligations in a specific case: a host provider might well be ordered to prevent an infringement, and not just to bring an existing infringement to an end. The CJEU has confirmed this in its case law, including the seminal decision in L’Oréal v eBay (which also concerned Article 11 of the Enforcement Directive), in which it held that an obligation for the future must concern infringements of the same nature by the same recipient of the same rights. 

The AG also recalled that in his Opinion in Mc Fadden [Katpost here], he had advised the CJEU to rule that, in order for a monitoring obligation to be considered applicable to a specific case it must, in particular, be limited in terms of the subject and the duration of the monitoring. In relation to the latter, the AG observed that a permanent monitoring obligation would be difficult to reconcile with the concept of an obligation applicable ‘in a specific case’. 

In any event, a ‘global assessment’ is required in order to answer whether a certain injunction is compatible with Article 15(1). 

Bearing all this in mind, the AG considered the specific case at issue, also with regard to proportionality and the need to balance different fundamental rights, and concluded that Facebook may be ordered to: 
  • Seek and remove information identical to the information characterized as illegal when this is also disseminated by other users of the platform;
  • Seek and remove information equivalent to the information characterized as illegal only when this is disseminated by the user who disseminated said information. Holding otherwise, and extending Facebook’s obligation to information disseminated by other users, would entail a general monitoring on the side of the provider (that could no longer be considered neutral), and would also fail to achieve a fair balance of different rights and interests. 
It's a Katworld
Removal worldwide 

Turning to the question of the geographic scope of the removal of content that has been found illegal under the law of a certain Member State and standing the technical possibility for a provider like Facebook to remove content worldwide, the AG considered that a different assessment should be made depending on the right at issue. 

The legal situation at issue here (defamation) is one for which there has been no substantial harmonization. This would make the assessment different from the case of a substantially harmonized right (as it is for the right to be forgotten in CNIL v Google). In his Opinion in that case, AG Szpunar advised that de-referencing should be only carried out in relation to the EU, albeit there might be situations which warrant application of the provisions in Directive 95/46 beyond the EU. 

With regard to the present case, the AG deemed it necessary to address, first, who would have jurisdiction to adjudicate on an injunction with extraterritorial effects and, second, what (geographic) scope such injunction should have. 

As regards the former, the AG noted that the E-commerce Directive does not contain jurisdiction rules and that the Brussels I Regulation recast rules would apply. In eDate Advertising, the CJEU found that when it comes to personality rights violated by content disseminated online, one could sue where they have their centre of interests and the court seised would have jurisdiction to adjudicate on all damage suffered. From this it follows that: 
the court of a Member State may, as a general rule, adjudicate on the removal of content outside the territory of that Member State, as the territorial extent of its jurisdiction is universal. A court of a Member State may be prevented from adjudicating on a removal worldwide not because of a question of jurisdiction but, possibly, because of a question of substance. 
Turning to the issue of scope of the removal obligation, the AG noted that the E-commerce Directive is silent in this respect, and that the applicant in the background proceedings did not rely on EU law. As such, the situation would be different from the one at issue in Google v CNIL. According to the AG, EU law does not prevent the imposition on a host provider of an obligation to remove content worldwide, also because international law does not prevent an injunction from having extraterritorial effects. This said, 
the court of a Member State may, in theory, adjudicate on the removal worldwide of information disseminated via the internet. However, owing to the differences between, on the one hand, national laws and, on the other, the protection of the private life and personality rights provided for in those laws, and in order to respect the widely recognised fundamental rights, such a court must, rather, adopt an approach of self-limitation. Therefore, in the interest of international comity, to which the Portuguese Government refers, that court should, as far as possible, limit the extraterritorial effects of its junctions concerning harm to private life and personality rights. The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person. Thus, instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking. Those considerations cannot be called into question by the applicant’s argument that the geo-blocking of the illegal information could be easily circumvented by a proxy server or by other means.
The face you make when
you have perfectly understood
what you need to do
Comment

This is yet another thoughtful Opinion by AG Szpunar whose echo will be heard in the future and in different fields, including in IP and outside the realm of intermediary injunctions.

Starting from the latter (injunctions), the AG reminded us that when it comes to these measures, different rights are at issue and need to be carefully balanced. Also, a proportionality scrutiny and, more generally, a 'global assessment' need to be undertaken. In all this, injunctions can entail specific monitoring obligations. 

None of the above is new, although over time some commentators have attempted to propose a narrow interpretation of the scope - both substantial and territorial - of injunctions against intermediaries.

Turning to something else, what is particularly interesting in this Opinion is the relationship between Article 15 and intermediaries' obligations in relation to monitoring and filtering. In particular, it appears that the Opinion of AG Szpunar may shed some light also onto something that, of course, is not at issue in this case, and that is Article 17 of the DSM Directive [here]

As readers know, the text eventually adopted includes a specific mention that "the obligations established in this Directive should not lead to Member States imposing a general monitoring obligation" (Article 17(8) and Recital 66). 

Yet, it is unclear where the line is to be drawn between specific and general monitoring, and what actual obligations online content sharing service providers (a category which is likely to include Facebook) are subject to. In this sense, the different treatment of identical and equivalent content, as proposed by AG Szpunar, might find its application also in the context of Article 17 obligations.

Let's now wait and see what the CJEU decides. Stay tuned!

[Originally published on The IPKat on 5 June 2019]