EU endorses duty of social media platforms to monitor content prior to receipt of takedown notice

In the case of Eva Glawischnig-Piesczek v Facebook Ireland Limited, the European Court of Justice (“ECJ”) on October 03, 2019, held that national courts of member states of the European Union (“Member States”) may order an injunction against online social media platforms, which requires the platform to discontinue access to the content worldwide, and block identical content or content having equivalent meaning.

Facts

In this case, Ms. Eva Glawischnig-Piesczek (“Claimant”) a member of an Austrian political party came across a user comment (“Comment”) on a post (“Content”) sharing an article from an Austrian online news magazine on Facebook (“Platform”). The post contained a thumbnail of the original site, brief summary of the article and a photograph of the Claimant. The Claimant found the Comment to be offensive and harmful to her reputation, and subsequently sent a letter to Facebook Ireland (“Facebook”), that managed the Platform, requesting them to take down the Comment. When Facebook refused to take down the Comment, the Claimant filed an action before the Austrian Commercial Court (“Commercial Court”). The Commercial Court, finding the Comment to be defamatory under the General Civil Code of Austria, passed an interim order (“Interim Order”) directing Facebook to cease and desist from publishing and disseminating the Claimant’s photographs which is accompanied by text containing the Comment verbatim or words having equivalent meaning as the Comment, till the Commercial Court rules on the matter. Subsequently, Facebook disabled access to the Content within the territory of Austria.

Higher Regional Court

On appeal by Facebook before the Higher Regional Court, the Interim Order was upheld with respect to the content being displayed on the Platform that contains the Comment verbatim. However, with respect to content with “equivalent meaning” to the Comment, Facebook would be obligated to discontinue dissemination of such content only when the same is brought to its knowledge by the Claimant, third parties or otherwise.

Austrian Supreme Court

Both parties filed appeals before the Austrian Supreme Court (“Supreme Court”). The Supreme Court referred the matter to the ECJ as there was a need to interpret Article 15(1) of the European Union Electronic Commerce Directive, 2000 (“E-Commerce Directive”) and whether the orders of the Austrian courts violated Article 15(1) of the E-Commerce Directive and whether the order of the Austrian court could be enforced worldwide.

Article 15(1) of the E-Commerce Directive stipulates that member states of the EU must refrain themselves from imposing a general duty upon providers to monitor information which they transmit or store, or to seek facts indicating illegal activity.

Reference to the ECJ

Issues before the ECJ

1. If a host provider (or platform) has not expeditiously removed illegal information that is identically worded as pre-identified illegal information (as in this case), does Article 15(1) of the E-Commerce Directive preclude the imposition of a general duty to monitor information or actively seek facts indicating illegal activity globally (“General Duty”)?
2. Will Article 15(1) preclude the imposition of a General Duty in case of posts containing information having equivalent meaning to pre-identified illegal information?
3. In case the platform owner is notified about the dissemination of information having equivalent meaning to pre-identified illegal information, can such a General Duty be imposed?

Observations of the ECJ

1. Taking down information identical to illegal contenta. Specific cases: Although Article 15(1) of the E-Commerce Directive prohibits Member States from imposing a General Duty on platforms, such prohibition is not applicable with respect to monitoring obligations of the platform in ‘specific cases’, as is the situation before the Supreme Court above.
2. Nature of services provided by platforms: Since these platforms facilitate the swift flow of information stored by them amongst their users, the risk of disseminating illegal information within the platform is quite high. Hence, to prevent further impairment of interests in such cases, the court having jurisdiction ought to be able to require such platform to block access or remove information stored on it that is identical to pre-identified illegal information. Rather, the duty imposed by the injunction in the Interim Order, which was upheld by the Higher Regional Court, would not be construed as being a ‘General Duty’ within the meaning of Article 15(1) of the E-Commerce Directive.
3. Taking down information having equivalent meaning to illegal contenta. Interpretation of “information having equivalent meaning”: The use of the terms “information with an equivalent meaning” (“Equivalent Content”) by the Higher Regional Court implies that the illegality of the content is because the content conveys an illegal message and not from the use of particular words in a particular order. Hence, for an injunction ordering the Platform to discontinue access to the Content to be effective and achieve its objectives, it must also include information, the content of which is conveying the same meaning, though worded slightly differently.b. Identification of common elements: The intent of the ECJ is to balance countervailing interests, hence, such an injunction, in order to be applicable to Equivalent Content, ought to identify certain elements that will have to be present in the content sought to be brought down. The name of the person concerned by the previously determined infringement, could be one such element.c. Scope of the platform’s duty: The platform should not be required to conduct an independent assessment of the differences in the wording of the pre-identified illegal information and the allegedly Equivalent Content.

Injunction producing effects across jurisdictions:

The ECJ observed that international laws have to be kept in mind while making such injunctions applicable in a manner that they produce effects worldwide, though this did not affect the authority of the national courts of the Member States from passing such injunctions.

The ECJ observed that its determination on the first two issues precluded the need for a determination on the 3^rdissue.

Quick View

In recognizing the authority of the national courts of the Member States to pass such injunctions with respect to content that is identical to pre-identified illegal content or having equivalent meaning as such pre-identified content, the ECJ has paved the way for the implementation of automated technologies and upload filters by social media platforms. This approach is akin to the approach undertaken by the requirement of Article 13 of the Directive (EU) 2019/790 to implement an upload filter to prevent dissemination of content allegedly infringing of copyright in works identified by rights holders. The ECJ has attempted to specify how a duty to block such content in the absence of specific intimation to the social media platform, is different from the idea of a ‘general duty’ within the meaning of Article 15(1). However, its approach in the direction of subjecting intermediaries to stringent rules is quite apparent, allowing the imposition of a duty to block content on unelected private entities who lack the expertise to make such determinations regarding the legality of content in the absence of adequate context. In making such a decision the ECJ ought to have sought to balance the user’s right to freedom of speech and expression on the one hand, and the right of the subject of allegedly defamatory content to be forgotten (Article 17 of the General Data Protection Regulation). Not only does the ECJ’s decision enable surveillance by private entities, but it fails to take account of the prevalent varying international human rights standards while it allows the applicability of the injunction beyond its jurisdiction. This may give rise to practical difficulties if the national court of a country outside the European Union determines that particular content is not defamatory and directs the platform to reinstate such content. Compliance with the court’s order in this jurisdiction would result in a violation of the ECJ’s order, and the ECJ’s decision does not shed much light on how the platform should deal with such situations. Multiple issues as discussed above remain open-ended as a result of the ECJ’s determination and the decision appears to give rise to more confusion than it provides guidance.

Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.

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