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On 3 October 2019, the CJEU handed down its judgment in Eva Glawischnig-Piesczek v Facebook Ireland Limited. The landmark decision means that the rule against general monitoring obligations (Article 15 of the E-Commerce Directive) does not preclude EU member states’ national courts from ordering hosting platforms like Facebook to take down illegal user-generated content, as well as any content which is ‘identical’ or ‘equivalent’ to content which has previously been declared illegal, on an on-going, world-wide basis. Aside from potentially creating on-going monitoring obligations for platforms, the decision has been accused of paving the way to global censorship by bringing the loosely defined concepts of ‘identical’ and ‘equivalent’ content within the remit of what platforms can be required to police, and allowing censorship-prone countries to impose their laws worldwide. This note discusses the decision, its shortcomings and its potential wider impact.

Autores: Ingrid Silver Carolyn E. Pepper

Background

In April 2016, a Facebook user posted on his personal page an article from the Austrian e-magazine oe24.ar entitled “Greens: Minimum income for refugees should stay”. The post generated a ‘thumbnail’ containing the title and a summary of the article, as well as a photograph of Ms Eva Glawischnig-Piesczek, a member of the Nationalrat (National Council, Austria), chair of the parliamentary party ‘die Grünen’ (the Greens) and federal spokesperson for that party. The post was accompanied by a disparaging comment published by the user, which the Austrian court found to be harmful, insulting and defamatory to Ms Glawischnig-Piesczek. Any Facebook user could access the post.

In July 2016, Ms Glawischnig-Piesczek wrote to Facebook, asking it to delete the harmful comment. As Facebook did not comply with her request, Ms Glawischnig-Piesczek brought proceedings against it before the Austrian courts and obtained an order prohibiting Facebook from publishing and/or disseminating the harmful comment and/or equivalent content. The proceedings reached the Austrian Supreme Court, which issued a preliminary ruling request on the interpretation of Directive 2000/31/EC on Electronic Commerce (the ‘E-Commerce Directive’) to the Court of Justice of the European Union (‘CJEU’).

The E-Commerce Directive provides that a hosting platform should not be liable for user-generated content, provided that it has no knowledge of any illegality and acts expeditiously upon obtaining such knowledge (Article 14(1)). This exemption is without prejudice to the power of national courts to require the hosting platform to terminate or prevent an infringement (Article 14(3)). However, national courts cannot subject hosting platforms to a general monitoring obligation or impose a general obligation to seek facts or circumstances indicating illegal activity (Article 15(1)). 

In light of the above, the CJEU was asked to decide whether Article 15(1) of the E-Commerce Directive precluded national courts from requiring a hosting platform to remove content which is identical to content which was previously declared to be illegal, and any content with an equivalent meaning and if so, whether the national court could extend the injunction so that it had effect worldwide.