Europe’s highest court has decided that Internet intermediaries can be ordered to remove illegal content on a global basis.

What’s the background?

The Court of Justice of the European Union (CJEU) held in Glawischnig-Piesczek, C-18/18 that online platforms, such as Facebook, can be ordered to remove “identical and, in certain circumstances, equivalent” comments that have been previously declared by national courts to be illegal and that such orders can be effected on a worldwide basis.

The decision stemmed from a complaint brought by Eva Glawischnig-Piesczek, an Austrian politician who sought Facebook’s help in removing disparaging public posts by a Facebook user. Following Facebook’s initial refusal to remove these posts, the Vienna Commercial Court issued an injunction against Facebook and order to remove not only the offending post but any identical and equivalent posts (that would harm the claimant’s personality rights).

Consequently, Facebook agreed to remove the original post—but only for users based in Austria. After subsequent appeals from both the claimant and Facebook through the Austrian courts, ultimately the Austrian Supreme Court referred the case to the CJEU for guidance on the material, personal and territorial scope of the injunction sought by the claimant.

Namely, to what extent does Facebook have to comply with such orders, given that Article 15(1) of Directive 2000/31 (the E-Commerce Directive) provided a “safe harbour” to online platform providers, by prohibiting EU member states from imposing a  general obligation on them to monitor information they transmit or store.

A landmark ruling

In  short, the CJEU ruled that Article 15(1) does not prohibit EU member states from ordering  an online platform, such as Facebook, to remove content identical and equivalent to that found to be illegal. This is because although there is no general obligation to monitor, that prohibition does not extend to monitoring obligations “in a specific case”.

Therefore, it was acceptable for a national court to require a platform provider to specifically remove information that is identical and equivalent—so long as it didn’t require a platform provider to carry out an independent assessment of that content (given that this would likely fall into the category of general monitoring).

In addition, the CJEU addressed the question of territoriality, finding that an order to remove such material—be it identical or equivalent—can apply worldwide so long as it’s “within the framework of the relevant international law” as the E-Commerce Directive does not provide for “any territorial limitation”.

Is this a watershed moment?

Potentially, yes. The ruling is a victory for victims of illegal and defamatory content, but it will come as a setback to Facebook and other online platforms who may now have to face up to the new reality of being arbiters of the content transmitted via their platforms.  In response to this ruling, Article 19 (a UK rights group) has said the ruling may see online platform providers turn to using automated filters to identify illegal content and has “major implications for online freedom of expression” globally as a way to address the seemingly new requirement to take a more “proactive” approach to monitoring.

In addition, it remains to be seen how any global injunctions issued by a national court will be implemented or enforced in practice—in particular, where that jurisdiction is challenged (which undoubtedly will be done by the online platform providers).

For now, it appears that Facebook is considering a challenge to this takedown order, given Mark Zuckerberg’s comments in a recent employee Q&A (see here from 12 minutes). Given the CJEU has no further appeal mechanism, it remains to be seen how such challenge will be undertaken—perhaps, through the US courts by seeking to challenge it’s enforceability in that territory.

How can this be reconciled with the recent “right to be forgotten” ruling?

Arguably, the warning signs may have been there in the ruling given by CJEU a fortnight ago in Google v CNIL (which we discussed further here). This was seen as a landmark judgment for freedom of expression and access to information. However, the CJEU did leave the door open for future extraterritorial regulation of the Internet with its remark that global injunctions could be issued “where appropriate” for de-referencing across all versions of a search engine. It seems that it has, in this instance, followed through on its warning with the Facebook ruling.

Whilst this latest ruling will be seen as a victory against hate speech, it has clearly left online tech companies with much food for thought and (potentially) considerably more work to ensure their European businesses continue to comply with EU law.