The Finnish transposition of Article 17 of Directive 2019/790: progress or regress?

Abstract

<p>• The ongoing process to transpose Article 17 of Directive 2019/790 (‘CDSMD’) into national law has proven challenging in Finland. Policy fluctuations in the Finnish Ministry of Education and Culture have resulted in highly bipolar legislative drafting, which has produced two highly divergent approaches how to transpose Article 17. The difference shows especially in the provisions transposing the so-called filtering obligations of online content sharing service<br>providers (‘OCSSPs’) under Article 17(4) and limits imposed on it by Article 17(7) and (8).<br>• The first Finnish draft bill of 2021 sought to transpose Article 17 by entirely rewriting its provisions. This was meant to rectify conceptual ambiguities and to mitigate fundamental right risks to the users of these OCSSPs. Following closely the Opinion of Advocate General in Polish challenge to Article 17, the first draft limited the use of automated blocking to ‘completely equivalent’ works.<br>• The second draft bill of 2022 retracted from rewriting Article 17 and instead switched to transposing it closer to its original wording following Danish and Swedish models. The freedom of expression emphasis and user right considerations of the first draft were largely removed and replaced with hollow reiterations of the Directive recitals.<br></p>