Monitoring After “Poland”

When it comes to the interpretation of IP rights, recourse may be had to different human rights. Depending on their nature, the application of those human rights however may suggest conflicting results in the interpretation of the IP right. In order to avoid such conflicts, the principle of proportionality will have to be observed, in order to reconcile the different rights and principles at issue. In many respects, the decision of the CJEU in the Poland case offers an example of the correct use of the proportionality principle. However, there seems to be one exception. When it comes to the ban on a general monitoring obligation in Article 17(8) of the Directive, priority is given to the interpretation furthering the freedom of information, without proper consideration of the conflicting right of intellectual property. It is submitted that this can hardly be justified under the applicable principle of proportionality.