CJEU rules algorithmic platforms may lose safe harbour protection from liability
The Grand Chamber of the Court of Justice of the European Union (CJEU) has ruled that platforms deploying an algorithm to present user content may not have access to “safe harbour” protection from liability.
The decision concerned two joined cases: C-188/24 and C-190/24.
Case C-188/24 concerned WebGoup Czech Republic and NKL Associates, publishers of websites broadcasting pornographic content established in the Czech Republic. The President of ARCOM (French audiovisual and digital regulatory authority) served them with a formal notice of their breach of Law No 2020-936 and Article 227-24 of the French Criminal Code which prohibits the exposure of pornographic content to minors.
WebGoup Czech Republic and NKL Associates challenged the notice on the basis it was contrary to Article 14 of EU Directive 2000/31/EC of 8 June 2000 (E-Commerce Directive) (now found in Article 6 Digital Services Act). Article 14 provides a safe harbour by removing liability of platforms for information uploaded by users if they do not have any actual knowledge of illegal activity or information, or if the platform removes access to the information expeditiously upon becoming aware of it. The French Council of State referred the matter to the CJEU.
Case C-190/24 concerned Coyote System’s geolocation-based navigation platform which allowed users to circulate the locations of roadside checks to enable other users to avoid them. The issue was whether Article 15 of the E-Commerce Directive (found in Article 8 Digital Services Act) applied, which prohibits member states from imposing an obligation on platforms to generally monitor or actively seek indications of illegal activity.
The court’s approach
When addressing the issue in case C-188/24, the court considered the extent to which platforms that use an algorithm to sort and present user content have control over the information shared.
The court referred to joint CJEU cases C 682/18 and C 683/18 YouTube and Cyando which determined that exemption from liability under Article 14 of the E-Commerce Directive is dependent on the conduct of the platform being neutral, merely technical, automatic and passive, rather than playing an active role which facilitates knowledge or control of the content stored.
The court found that even a platform that is not aware of user content due to algorithmic automation of the distribution process still has control over the material, excluding them from the benefit of the Article 14 safe harbour. Applying an algorithm to determine what content is shared and how it is prioritised, in the interest of the platform or service, exerts control over stored information and thus exposes the platform to liability.
Regarding Case C-190/24, the court clarified that the prohibition of general monitoring under Article 15 of the E-Commerce Directive only applied to those that benefit from the Article 14 safe harbour, meaning EU member states can enforce laws against algorithm-deploying platforms to require active monitoring of user content for illegal activity.
Conclusion
The decision provides key clarification over the scope of the safe harbour exemption and the limits of the prohibition against a general obligation to monitor, in a world of algorithms and digital automation.
Importantly, this change has the potential to remove protection from liability for many social media platforms operating across the EU that deploy algorithms to show material based on popularity, engagement and trends to maintain user interest. These platforms will need to remain vigilant and actively monitor for indications of illegal activity to avoid potential fines.
