Delfi v Estonia: Curtailing online freedom of expression?

Lorna Woods, Professor of Media Law, University of Essex

When can freedom of expression online be curtailed? The recent judgment of the Grand Chamber of the European Court of Human Rights in Delfi v. Estonia has addressed this issue, in the particular context of comments made upon a news article. This ruling raises interesting questions of both human rights and EU law, and I will examine both in turn.

The Facts

Delfi is one of the largest news portals in Estonia. Readers may comment on the news story, although Delfi has a policy to limit unlawful content, and operates a filter as well as a notice and take down system. Delfi ran a story concerning ice bridges, accepted as well-balanced, which generated an above average number of responses. Some of these contained offensive material, including threats directed against an individual known as L. Some weeks later L requested that some 20 comments be deleted and damages be paid. Delfi removed the offending comments the same day, but refused to pay damages. The matter then went to court and eventually L was awarded damages, though of a substantially smaller amount than L originally claimed. Delfi’s claim to be a neutral intermediary and therefore immune from liability under the EU’s e-Commerce Directive regime was rejected. The news organisation brought the matter to the European Court of Human Rights and lost the case in a unanimous chamber decision. It then brought the matter before the Grand Chamber.

The Grand Chamber Decision

The Grand Chamber in essence, affirmed the outcome and the reasoning of the chamber judgment in the same case, albeit not unanimously. It commenced by re-capping the principles of Article 10 of the European Convention on Human Rights from its previous case law. These are familiar statements of law, but it seems that from the beginning of its reasoning the Grand Chamber had concerns about the nature of content available on the internet. It commented:

while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of personality rights. [110]

The Grand Chamber then referred to certain Council of Europe Recommendations, suggesting:

a “differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe” (see § 7 of the Appendix to Recommendation CM/Rec(2011)7, ..). Therefore, the Court considers that because of the particular nature of the Internet, the “duties and responsibilities” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content. [113]

The Grand Chamber applied the principles of freedom of expression to the facts using the familiar framework. First there must be an interference with the right under Article 10(1) of the Convention, then any restriction should be assessed for acceptability according to a three stage test. The test requires that the restriction be lawful, achieve a legitimate aim and be necessary in a democratic society. The existence of a restriction to freedom of expression was not disputed, and nor that the Estonian rules pertained to a legitimate aim. Two areas of dispute arose: lawfulness and necessary in a democratic society.

Lawfulness

Lawfulness means that the rule is accessible to the person concerned and foreseeable as to its effects. Delfi argued that it could not have anticipated that the Estonian Law of Obligations could apply to it, as it had assumed that it would benefit from intermediary liability derived from the e-Commerce Directive. The national authorities had not accepted this classification, so essentially Delfi argued that this was a misapplication of national law. The Grand Chamber re-iterated (as had the chamber) that it is not its task to take the place of the domestic courts but instead to assess whether the methods adopted and the effects they entail are in conformity with the Convention. On the facts, and although some other signatory states took a more “differentiated and graduated approach” as suggested by the Council of Europe recommendation, the Grand Chamber was satisfied that it was foreseeable that the normal rules for publishers would apply. Significantly, the Grand Chamber commented, in an approach similar to that of the First Chamber that:

as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. [129]

Necessary in a Democratic Society

The Grand Chamber started its analysis by re-iterating established jurisprudence to the effect that, given the importance of freedom of expression in society, necessity must be well proven through the existence of a ‘pressing social need’. It must determine whether the action was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. The Grand Chamber also emphasised the role of the media, but also recognised that different standards may be applied to different media. Again it re-iterated its view that the Internet could be harmful, as well as beneficial ([133]). The Grand Chamber then travelled familiar terrain, stating the need to balance Articles 8 and 10 and approving the factors that the First Chamber took into account: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and the consequences of the domestic proceedings for the applicant company ([142-3]).

Here, the Grand Chamber emphasised the content of the comments: that they could be seen as hate speech and were on their face unlawful [153] and that given the range of opportunities available to anyone to speak on the internet obliging a large news portal to take effective measures to limit the dissemination of hate speech and speech inciting violence was not ‘private censorship’. ([157]) The idea that a news portal is under an obligation to be aware of its content is a key element in the assessment of proportionality. Against this background (rather than one which accepts the notice and take down regime as enough), Delfi’s response had not been prompt. Further, ‘the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments’ [158]. In the end, the sum that Delfi was fined was not large, and the consequence of the action against the news portal was not that Delfi had to change its business model. In sum, the interference could be justified.

There were two concurring judgments, and one dissent. Worryingly, one of the concurring judges (Zupančič), having criticised the possibility of allowing anonymous comments, argued:

To enable technically the publication of extremely aggressive forms of defamation, all this due to crass commercial interest, and then to shrug one’s shoulders, maintaining that an Internet provider is not responsible for these attacks on the personality rights of others, is totally unacceptable.

According to the old tradition of the protection of personality rights, …, the amount of approximately EUR 300 awarded in compensation in the present case is clearly inadequate as far as damages for the injury to the aggrieved persons are concerned.

Human Rights Issues: Initial Reaction

This is a long judgment which will no doubt provoke much analysis. Immediate concerns relate to the Court’s concern about the Internet as a vehicle for dangerous and defamatory material, which seems to colour its approach to the Article 10(2) analysis and, specifically, to the balancing of Articles 10 and 8. In recognising that the various forms of media operate in different contexts and with different impact, the Grand Chamber has not recognised the importance of the role of intermediaries of all types (and not just technical intermediaries) in providing a platform for and curating information. While accepting that the internet may give rise to different ‘duties and responsibilities’, it seems that the standard of care required is high.

Indeed, the view of the portal as having control over user generated content seems to overlook the difficulties of information management. The concurring opinions go to great length to say that a view which requires the portal only to take down manifestly illegal content of its own initiative is different from a system that requires pre-publication review of user generated content. This may be so, but both effectively require monitoring (or an uncanny ability to predict when hate speech will be posted). Indeed, the dissenting judges say that there is little difference here between this requirement and blanket prior restraint (para 35). Both approaches implicitly reject notice and take down systems, which are used – possibly as a result of the e-Commerce Directive framework – by many sites in Europe. This focus on the content has led to reasoning which almost reverses the approach to freedom of expression: speech must be justified to evade liability. In this it seems to give little regard neither to its own case law about political speech, nor its repeated emphasis on the importance of the media in society.

EU law elements: consistency with the e-commerce Directive?

The Delfi judgment raises some practical questions for news sites hosting third party content, especially reader comments.  An underlying concern is how this judgment fits with the EU policy approach towards the Internet and intermediaries in particular.  The eCommerce Directive provides, inter alia, for the limitation of liability for intermediaries, in articles 12-15.  These provisions were considered important, not just for the free flow of services through the EU, but support to the development of the Internet and service offered on it.  The eCommerce Directive envisages three categories of intermediary – those which are mere conduits, those which offer caching and those which host content.  The essential quality of these intermediaries is that they were facilitators via technical services rather than contributing to the provision of specific content.  It is the scope of this last category that is uncertain, especially given the development of a range of services which challenge the understanding of the Internet as it stood at the time of the enactment of the directive.  Following the first chamber decision, there was some concern that the judgment did not respect the underlying policy choice about intermediaries, nor reflect the significance of the role of intermediaries for the functioning of the Internet, especially from the perspective of end-users.  The question is how out of line, if at all, is the judgment with the Directive?

The first thing to note before we look at the substance is that the Strasbourg Court was not making the decision about whether Delfi was a neutral or passive intermediary or not.  The Court was rather reviewing the impact of the Estonian court’s reasoning.  In sum, it is far from clear that the court was unreasonable – bearing in mind the current jurisprudence from the European Court of justice – in accepting the Estonian court’s end conclusion (even if we might be critical about some points of its reasoning).

The intermediary liability provisions provide a graduated scale of protection, with the greatest protection going to services that are the most technical.  For hosting services, protection is dependent on lack of knowledge of the offending content.  There have been questions about the interpretation of some of the phrases in Article 14(2) of the Directive, such as ‘awareness’, ‘actual knowledge’ and obligation to act expeditiously’. The Directive envisages notice and take down regimes as a way to deal with offending content. Articles 14 and 15 do not affect Member States’ freedom to require hosting service providers to apply those duties of care that can reasonably be expected from them and which are specified by national law in order to detect and prevent certain types of illegal activities. (recital 48) Article 15 prevents Member States from imposing on internet intermediaries, with respect to activities covered by Articles 12 to 14, a general obligation to monitor the information they transmit or store or a general obligation to actively seek out facts and circumstances indicating illegal activities.  Article 15 does not prevent public authorities inthe Member States from imposing a monitoring obligation in a specific, clearly defined individual case (recital 47). It is implicit in the foregoing, that Article 15 only applies to intermediaries which can claim the benefit of one of Articles 12, 13 or 14.

A number of cases have been brought before the European Court of Justice to understand better the scope of Article 14, and the extent of the protection in Article 15. For example, SABAM v Netlog (Case C-360/10) concerned a social networking site which received a request from SABAM, the Belgian copyright society, to implement a general filtering system to prevent the unlawful use of musical and audio-visual work by the users of its site.  In addition to confirming the prohibition in Article 15 on monitoring, the ECJ noted that a filter might not be able to distinguish between lawful and illegal content, thus affecting users’ freedom of expression (access to information).  In this the ECJ seems to be reflecting the position the ECtHR took in Yildirim, regarding ‘collateral censorship’.  There is a limitation on carrying the ideas in Netlogacross to Delfi in that the rules in Article 15 apply to neutral intermediaries and it is unclear whether the ECJ would find a news site to be neutral in this sense, whether because of the agenda-setting function which ‘invites’ particular responses, or because of the adoption of filtering and moderation systems.

In the Google Adwords case (Joined Cases C-236/08, C-237/08 and C-238/08, judgment 23^rd March 2010), the ECJ held that the test for whether a service provider could benefit from Article 14 ECD was whether it was ‘"neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores"’ (para 114).  One could argue that, insofar as a site invites comment on a particular topic, it is not neutral though one might question how overt that invitation might be. In L’Oreal (Case C-324/09, judgment 12 July 2011), the Court held that the Article 14 exemption should not apply where the host plays an "active role" in the presentation and promotion of offers for sale posted by its users so as to give it knowledge of, or control over, related data.  Further, if a host has knowledge of facts that would alert a "diligent economic operator" to illegal activity, it must remove the offending data to benefit from the Article 14 exemption.  We might question what the role of moderation and filters are in this context specifically in terms of giving an intermediary control over content.  As regards the Delfi case itself, there are arguably parallels between the ECJ and ECtHR approaches in that both courts seem to think that those acting in the course of their business are in a better place to assess where and when problems might arise.  A point of difference relates to the views of commercial activities. The ECJ argued in Google Adwords:  

It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31. [116]

The reference to ‘general information’ also suggests that contributors’ policies would not be determinative either.

Applying the tests found in L’Oreal v. eBay and Google Adwords in Papasavvas v O Fileleftheros, a case concerning on-line defamation in relation to a news story posted by a newspaper on its site (which I discussed earlier here), the ECJ ruled:

Consequently, since a newspaper publishing company which posts an online version of a newspaper on its website has, in principle, knowledge about the information which it posts and exercises control over that information, it cannot be considered to be an ‘intermediary service provider’ within the meaning of Articles 12 to 14 of Directive 2000/31, whether or not access to that website is free of charge. [45]

There are some similarities to the Strasbourg court’s reasoning, in that both courts point to the idea about control over information.  There are differences, however, in that the control over the defamatory material in Papasavvas was much more direct than in Delfi, and the predictive abilities of newspapers about their audience’s response to stories not in issue.  Nonetheless, it is far from clear that the ECJ would reject the agenda-setting argument the Strasbourg court used, especially given its reasoning in L’Oreal regarding the ‘promotion’ of particular content and the requirements of a diligent economic operator.

The Strasbourg court’s reasoning put Delfi in a position of effectively having to monitor user content.  Had Delfi been found to be an intermediary in the sense of Articles 12-14, this would have been contrary to Article 15 of the eCommerce Directive, as implemented in domestic law.  Given that Delfi was found not to be such an intermediary, then Article 15 does not come into play. It also seems that this finding is not unlikely under EU law.  There is then no automatic conflict between this ruling and the position under EU law.  Whether this outcome is desirable from an Internet policy perspective is another matter.  This case and its consequences may then feed into the review of intermediaries that the EU Commission is planning as part of its Digital Single Market strategy.

*Part of this post was previously published on the LSE Media Policy Project blog

Barnard & Peers: chapter 9

Photo credit: speech-rights-and-restrictions.weebly.com

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Copyright: anything left of Member States’ external competence?

Lorna Woods and Steve Peers

The extent of broadcasters’ rights is near the top of a long list of controversial issues arising from the law of copyright. Equally controversial is the extent of the EU’s exclusive external competence, which (where it exists) prevents Member States from signing treaties and (usually) means that they do not have a veto in the Council over the treaty concerned. These two issues came together in the recent CJEU judgment in Case C-114/12 Commission v Council, which concerned the EU’s competence to negotiate the Council of Europe’s draft treaty on the rights of broadcasting organisations.

Background

The regime covering mass electronic distribution of audiovisual works is complex, reflecting the traditionally national nature of broadcasting markets and the layered nature of intellectual property rights in audiovisual works.  In addition to the content-based rights, which are often assigned or licensed to the broadcaster, the broadcaster has rights in the signal itself (broadcasters’ neighbouring rights). These rights are found in a number of international treaties, including TRIPS. Similar rights relating to control over the fixation of the signal, as well as the making available of the signal to the public were contained in a number of directives variously implemented in the Member States, in particular Directive 2006/115/EC on Rental and Lending Rights (codifying  Directive 92/100) and Directive 93/83/EEC Satellite and Cable Directive, now codified  as Directive 2006/116). These rules have tended to be technologically specific and while Directive 2001/29 (the InfoSoc Directive) confirmed broadcasters’ rights whether wireless or cable technology was used, questions remained, notably the issue of identifying where the activity of ‘making available’ or ‘communicating to the public’ is taking place, especially in an Internet age.

There has been considerable litigation on these directives and how they operate in a new technical environment. Clearly something needed to be done and broadcasters have for some time been lobbying for change. Against this background, the Council of Europe agreed to start work on a Convention that protected broadcasters’ neighbouring rights.  According to a 2010 report, the aim of the Convention was to agree on a set of exclusive rights of broadcasting organisations, such as the right of fixation the right of reproduction, the right of retransmission, the right of making available to the public, the right of communication to the public and the right of distribution, in technologically neutral terms. Other issues were also to be discussed: the protection of pre-broadcast programme-carrying signals, the term of protection, the need for a non-exhaustive list of limitations and exceptions, the enforcement of rights and obligations concerning technological measures and rights-management information.

As for the EU’s role in these talks, the Council and Member States’ representatives adopted a single joint Decision authorising the joint participation of the EU and its Member States in the negotiations for a Convention. While the EU position would be represented by the Commission, the Member States’ collective position (if they could reach one) would be represented by the Council Presidency. If Member States could not reach a collective position on matters falling within their competence, they would negotiate individually.

The Commission disagreed with the Council’s decision on both substantive and procedural grounds, and so brought an annulment action before the Court of Justice.

Judgment

First of all, the Court quickly dismissed any doubt that the action was admissible. Even though the act in question had been adopted by the Member States alongside the Council, the Council was ‘involved’ in the entire Decision because it was both conferring and receiving power pursuant to it.

As to the substance, the Court agreed with the Commission that the envisaged treaty fell within the scope of the EU’s exclusive external competence. This was the first case in which the Court interpreted Article 3(2) TFEU (added by the Treaty of Lisbon), which provides that the EU has exclusive competence to conclude an international agreement where ‘its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope’

.  

The last of the three categories mentioned in Article 3(2) is similar to the classic exposition of the EU’s exclusive external competence in the ERTA judgment, although some academic opinion has suggested that the Treaty drafters have not adequately synthesized the judgment. On the other hand, some Member States intervening in support of the Council in this case suggested that the TFEU provision narrows the EU’s exclusive external competence, in particular in light of the Protocol to the Treaties on shared competences, which was also added by the Treaty of Lisbon.

However, the Court stated simply that the Treaty provision meant the same thing as the ERTAjudgment, as elaborated in the subsequent case law of the CJEU. The Protocol on shared competences was irrelevant, since it only referred to Article 2(2) TFEU, which defines the EU’s shared internalcompetences.

The Court then summarised the key aspects of the ERTA case law: it is not necessary for the international treaty and the EU legislation concerned to overlap fully; it may be sufficient that the area concerned is ‘largely covered’ by EU rules; and it is irrelevant that there is no contradiction between the treaty concerned and the internal EU rules. To show whether external competence was exclusive on this basis, there had to be a ’specific analysis of the relationship between’ the relevant international treaty and EU legislation. The Court added that the party alleging that competence was exclusive had the burden of proving it.

Applying these principles to the facts of the case, the Court summarised the relevant EU legislation (the five Directives referred to above), stating that the intellectual property rights concerned ‘are the subject, in EU law, of a harmonised legal framework which seeks, in particular, to ensure the proper functioning of the internal market’, which integrated technological, digital and information society developments, and which had ‘established a regime with high and homogeneous protection’ for broadcasters as regards their broadcasts.  It was irrelevant that this harmonisation appeared in different EU measures, which also regulated other intellectual property rights.

So the area of law to be compared as between EU law and the planned treaty was the neighbouring rights of broadcasters. On this point, while there were some differences between the existing EU rules and the planned treaty, any new rules on the planned treaty were liable to have a significant impact upon the EU acquis. In particular, the Court distinguished its prior case law which had held that external competence was shared when the EU set minimum standards, on the grounds that in this area EU legislation simply limited its scope instead. Since the new treaty might extend the scope of the EU rules, its subject-matter fell within the scope of the EU’s external competence. And on several points, the Court did not believe there was enough evidence to support the claims of the Council and some Member States that issues not covered by the EU acquis at all would be inserted into the future treaty.

For example, one particular issue relates to the protection of signals prior to their broadcast to the public – usually this occurs when one broadcaster transmits a signal to another. This issue is not currently covered by the EU rules. If the decision was taken to protect these signals, this protection could be provided in a number of ways.  The Court highlighted one option – the extension of the term ‘broadcasts’ to cover pre-broadcast signals would have horizontal effects through the regulatory system, and therefore impact on the EU acquis.  The other possible mechanisms noted (the introduction of sui generis legal protection of pre-broadcast signals or the application of the provisions dealing with ‘technical measures’ to the pre broadcast signals) would not have such an effect. The Court emphasized that in the absence of any reference to these approaches in the Council of Europe preparatory documents ‘those approaches seem, at this stage, to be hypothetical and cannot therefore be relevant to determining the exclusive or shared nature of the competence of the European Union in the present case’ (para 99).

Having ruled in favour of the Commission on its substantive argument, the Court ruled that it was not necessary to decide on the three alternative procedural arguments which the Commission had made: such a ‘hybrid’ decision of the Council and Member States was not permitted by EU law; the Council had wrongly voted by unanimity, not qualified majority; and the Council had breached the principle of sincere cooperation. The first two of these arguments had been accepted by Advocate General Sharpston in her Opinion (she thought the final argument was superfluous). However, unlike the Court, she had ruled against the Commission on the substantive point, on the basis that the Commission had argued that all of the provisions of the draft Convention were closely linked to EU law, but had failed to prove this on the facts.

Comments

First of all, as regards the admissibility of this action, the Court’s ruling is convincing as regards the Council conferring power on Commission, but arguably not as regards Member States conferring power on the Council (since it would be operating outside the EU framework in that context), and certainly not as regards Member States conferring power on Member States. The better argument for the admissibility of this action is that if the Council and Member States adopt a hybrid decision like this one, their action is indissociable. Put another way, if the Council and Member States act together in this way, there’s joint and several admissibility.

Secondly, as for the procedural points not addressed by the judgment, the Advocate-General’s opinion is not convincing. Since mixed agreements, ie agreements ratified by both the EU and its Member States, are a common feature of EU law, then there should no problem with the idea that a decision relating to negotiations on those agreements could in principle be a hybrid decision. Conceptually, that’s no different from the nature of the final mixed agreement.

As for the substantive competence issues, first of all it’s important that the Court clarified the point that ERTAand the case law elaborating upon it are still applicable to Article 3(2) TFEU, in light of the doubt which some had expressed on this point. The judgment is presumably relevant by analogy to the first two grounds for exclusive competence listed in Article 3(2) TFEU (where competence is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence). At the very least, it must follow that the Protocol on shared competence is also irrelevant to those two other grounds, since as the Court rightly said, that Protocol only refers to Article 2(2) TFEU.

Despite this important clarification, the application of the ERTA judgment itself remains complex and seems highly fact dependent in each case, arguably making the prediction of outcome difficult. Here, it is notable that the Court and the Advocate General came to different conclusions in determining the key question of whether the conclusion of the Convention affects common rules or alters their scope (Article 3(2) TFEU).  The Advocate General and the Court both stated that the burden of proof was on the Commission to show that exclusive competence had been established. As a corollary it seems the default position is shared competence. To quote the Advocate General:

if the analysis of the Convention and EU rules on the basis of the information presently available shows that in at least one respect Member States retain competence, the Commission’s plea must be rejected. [para 143]

While the Court accepted this allocation of the burden of proof, it is when we get to the specifics that differences emerge as can be seen in a couple of examples. Article 8(3) of Directive 2006/115 states:

Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.

The Advocate General analyses the matter as follows: ‘Thus, EU law does not yet regulate ‘at least’ the right of retransmission by wire or cable, whereas the Convention might do so and the Member States are currently authorised to provide for it in their own jurisdiction’ [para AG 150].  The Court accepts the same point but draws a very different conclusion from it – that the proposed Convention, by regulating areas currently outside EU competence, in itself might have an impact on EU law. The Court does not explain how, merely adopting the Commission’s position [92]. The fact that broadcasters are already partially covered by EU law does not seem to address the point.  So, the Opinion seems more logical on this point.

In a number of the aspects of the Convention under consideration, the question of whether there was impact would be affected by the approach finally taken by the negotiators. For example, the scope of the Convention would depend on its definition. While EU law does not have a definition of the term ‘broadcasting organisations’ there would be some confluence with the rights-holders under the various directives. The impact on EU law is therefore uncertain.  The Advocate General concluded cautiously:

If the definition in the Convention creates an absolute category that is wider than broadcasting organisations that are rightholders under the said directives, the creation of that category might possibly limit the European Union’s freedom to decide on its own definition. That may not be the case if the definition in the Convention were non-exhaustive and did not offer protection to entities other than existing rightholders under EU law. [AG 156]

While in this case it was necessary to finally determine the point as to whether there is impact on EU law or not, this then begs the question of what to do in such a circumstance – do we assume that if there is a possible interpretation that could affect EU law then the text is satisfied, or is a higher standard of proof required?

The difference on this point can be seen in the respective approaches of the Advocate General and the Court to pre-broadcast signals. It is clear that currently EU law does not require the protection of such signals and that the Convention proposed to afford protection to such signals. Given the early stages of negotiations, it is unclear what sort of mechanism was likely. Some possibilities might utilise techniques found in the existing legal framework (for example extending the definitions, or applying the technical measures rules to pre-broadcast signals). Since such an approach would have an impact on EU law, then that would bring the issue within the exclusive competence of the EU – appoint on which the Advocate General and the Court agreed.

Another mechanism exists – the development of a sui generis right – which would not have this effect. Here the Advocate General suggested that in such a situation there would be no exclusive competence. In stark contrast, the Court dismissed other approaches (including the sui generisright) as hypothetical, and therefore focussed only on the approach that would trigger exclusive EU competence [para 99].  No reason was given as to why the other approaches were more hypothetical than the approach the Court selected.  So while the Court and the Advocate General agree on the principles, they differ in the application of those principles, and it seems that the Court has tended to favour assessments that point towards exclusive competence.

Finally, what are the broader implications of the judgment? The Court of Justice has already ruled (in the Daiichi Sankyo judgment) that the WTO's TRIPs agreement falls within the scope of the EU exclusive external competence over the common commercial (external trade) policy (CCP), which was extended to cover trade-related intellectual property fully by the Treaty of Lisbon. It has also ruled that a Council of Europe treaty relating to enforcement of audiovisual service providers’ rights falls within the scope of the same competence, in light of the full extension of the CCP to services by the same Treaty. Usually, the Member States have no veto as regards CCP matters.

Now it seems that treaties relating to many other aspects of intellectual property can fall within the scope of the EU’s exclusive external competence, due to the exercise of the EU’s powers to adopt internal market legislation. Again, this means that Member States usually lose their veto. This effect is not absolute, given that the recent Marrakesh treaty on copyright exceptions for the blind and the Beijing treaty on audiovisual performances are both mixed agreements (see the list of signatories for the former and latter treaties respectively). However, the power of the EU (and the Commission in particular) in this field is demonstrated by the Commission’s veto of a planned Council of Europe treaty on cross-border broadcasting, at a late stage of negotiations.

More broadly, the Court’s pro-EU application of the test for exclusive competence suggests that it would be easier to find such exclusivity in other areas which the EU has only partly regulated, such as consumer law or immigration law. The broadcasting rights judgment may, in time, prove to be nearly as important as the ERTA judgment which it reconfirms and elaborates upon.

Barnard & Peers: chapter 14, chapter 24 

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