By Patrick Fitzgerald BL
C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland: ECJ broadens the obligation on social media providers to remove and to prevent unlawful content on their platforms
In C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland, the ECJ has significantly broadened the obligation on social media providers to remove and to prevent unlawful content on their platforms.
In C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland, the Plaintiff, a Green Party politician in Austria, sought an injunction against Facebook regarding a defamatory post entitled “Greens: Minimum income for refugees should stay” published on Facebook. The Plaintiff notified Facebook of the defamatory post and when Facebook failed to act expeditiously, the Plaintiff sought injunctive relief against Facebook seeking the removal of the defamatory post and/or posts of an equivalent nature. The Austrian Supreme Court sought a preliminary reference on the extent of Facebook’s obligation to remove unlawful content under the E-Commerce Directive.
Decision of the ECJ
The ECJ ruled that the prohibition on general monitoring obligations under Article 15 of E-Commerce Directive does not preclude national courts from ordering host providers to remove identical and, in certain circumstances, equivalent comments which were previously declared to be unlawful, or to block access to that information, irrespective of who requested storage of that information.
The ECJ, in adopting the reasoning of the Opinion of Advocate General Szpunar, drew a distinction between general monitoring— which an Internet Service Provider (“ISP”) is not obliged to do under Article 15(1) of the E-Commerce Directive— and monitoring in a specific case— which an ISP may be obliged to do so provided certain criteria are satisfied.
The ECJ held at para 33-37:
“33 In the first place, the referring court asks, in essence, whether Article 15(1) of Directive 2000/31 precludes a court of a Member State 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 illegal.
34 In that regard, although Article 15(1) prohibits Member States from imposing on host providers a general obligation to monitor information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity, as is clear from recital 47 of that directive, such a prohibition does not concern the monitoring obligations ‘in a specific case’.
35 Such a specific case may, in particular, be found, as in the main proceedings, in a particular piece of information stored by the host provider concerned at the request of a certain user of its social network, the content of which was examined and assessed by a court having jurisdiction in the Member State, which, following its assessment, declared it to be illegal.
36 Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.
37 In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.”
The ECJ also addressed the issue of prior restraint orders. The ECJ was asked to consider whether Article 15(1) of Directive 2000/31 precluded a court of a Member State from ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information.
The ECJ ruled that Article 15(1) of Directive 2000/31 does not preclude national courts from granting prior restraint orders against ISPs to remove information with an equivalent meaning provided that:
(a) the content remains essentially unchanged when compared with the content which gave rise to the finding of the illegality and contains the elements specified in the injunction (para.41 and para.45 of the judgment); and
(b) the ISP would not be required to carry out an independent assessment of the content and could have recourse to independent search tools and technologies to identify content of an equivalent nature (para.46 of the judgment).
Moreover, the ECJ held that E-Commerce Directive does not preclude national courts from granting injunctions producing worldwide effects so long as they are accordance with international law. The ECJ concluded at para 48-52:
48 In the third place, although the referring court does not provide any explanations in that regard in the grounds for its order for reference, the wording of the questions which it addressed to the Court suggests that its doubts also concern the issue whether Article 15(1) of Directive 2000/31 precludes injunctions such as those referred to in paragraphs 37 and 46 above from being able to produce effects which extend worldwide.
49 In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive.
50 Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide.
51 However, it is apparent from recitals 58 and 60 of that 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.
52 It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules.
C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland will increase the regulatory burden on social media providers to remove and to prevent unlawful content on their platforms, particularly content which has gone viral. The upshot of C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland will mean that social media platforms will be subject to tougher controls in regulating unlawful content uploaded by users onto their platforms—including content which is defamatory, in breach of copyright or in breach of privacy. Moreover, the ECJ clarified that the E-Commerce Directive does not preclude injunctions having a worldwide effect— a significant ruling in strengthening the armoury of national courts.
The ECJ clarifies that under the E-Commerce Directive (i) social media platforms may be the subject of monitoring orders in specific instances; (ii) social media platforms may be the subject of prior restraint orders to remove unlawful content of an equivalent nature; and (iii) social media platforms may be the subject of injunctions having worldwide effect.
C‑18/18 Eva Glawischnig-Piesczek v Facebook Ireland certainly represents a shot in the arm in the regulation of data on social media platforms—and certainly is not the last say of the ECJ on the matter.