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 judgement and the AG’s Opinion in C-401/19

This article analyses the European Commission’s Guidance on art.17 CDSM Directive, the recent ECJ judgment in YouTube/Cyando and the Advocate General’s Opinion in C-401/19. When read together, these documents outline a legal framework for content moderation for digital platforms that tries to be respectful of the balances inherent in copyright law and to minimise its negative impacts, without, however, eliminating all problematic issues with regard to fundamental rights and other general principles of EU law. Especially after the Opinion in C-401/19, its compatibility with freedom of expressions seems extremely fragile as it is entirely conditional on how the provision will be implemented by Member States and on the safeguards they will provide against over-blocking 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, and in particular the fact that privately operated algorithmic tools and not independent assessors based on copyright law’s equilibrium will be deciding what content should be available online and to take into account of the inherent limits and flaws of technology.