The Court of Justice of the European Union has ruled in Eva Glawischnig-Piesczek v Facebook Ireland Limited C-18/18, that EU law does not prevent a host provider, such as Facebook, from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal. In addition the CJEU has ruled, controversially, that EU law does not prevent such an injunction from applying worldwide, within the framework of the relevant international law. It is for member states to take that framework into account.
An Austrian politician sued Facebook Ireland in the Austrian courts. She sought an order requiring Facebook Ireland to remove a comment published by a user which was harmful to her reputation, and allegations which were identical and/or of an equivalent content.
The Facebook user in question had shared an article on their personal page. That generated a ‘thumbnail’ of the original site on the user’s personal page, containing the title and a brief summary of the article, and a photograph of the politician. The user also published, in connection with that article, a comment which the Austrian courts found to be harmful to the reputation of the politician, and which insulted and defamed her. This post could be accessed by any Facebook user. The politician asked Facebook Ireland to remove the post. Facebook Ireland disabled access in Austria to the content initially published.
The Austrian referring court asked the CJEU to interpret Directive 2000/31/EC on electronic commerce.
Background law
Under that directive, a host provider such as Facebook is not liable for stored information if it has no knowledge of its illegal nature or if it acts expeditiously to remove or to disable access to that information as soon as it becomes aware of it. However that exemption does not prevent the host provider from being ordered to terminate or prevent an infringement, including by removing the illegal information or by disabling access to it. However, the directive prohibits any requirement for the host provider to generally monitor information which it stores or to actively seek facts or circumstances indicating illegal activity.
Questions referred
The questions referred were whether Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it precludes a court of a Member State from:
- ordering a host provider to remove or block access to information which is identical to the information which was previously declared to be illegal, regardless of who requested the storage of that information;
- ordering a host provider to remove or block access to information which is equivalent to the information which was previously declared to be illegal
- extending the effects of that injunction worldwide.
The court’s ruling
The CJEU ruled that the directive seeks to strike a balance between the different interests at stake. As a result, it does not prevent a member state’s court from ordering a host provider:
- to remove or block access to information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, irrespective of who requested the storage of that information;
- to remove or block access to information which is equivalent to the information which was previously declared to be unlawful, provided that:
- the monitoring and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which originally gave rise to the finding of illegality
- it contains the elements specified in the injunction,
- the differences in the wording of the equivalent content, compared with the wording characterising the previously declared illegal information, are not such as to require the host provider to carry out an independent assessment of it (therefore, the host provider may use automated search tools and technologies);
- to remove or block access to the information covered by the injunction worldwide within the framework of the relevant international law. It is up to member states to take that law into account. It was apparent from recitals 58 and 60 of the directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level.
