Seek and Destroy - Hosting providers’ obligations to track down illegal content may be extended by European Court

By Tina English and Lee O'Donovan
18 June 2019

Advocate General Szpunar (the “AG”) of the Court of Justice (“CJEU”) has stated in a noteworthy opinion that the E-Commerce Directive¹ (the “Directive”) does not preclude host providers from being ordered, in the context of an injunction, to seek and identify all information identical to the information that has been found to be illegal by the court that issued the injunction, and equivalent comments in so far as the latter originate from the same user. The AG also considered that the Directive does not regulate the territorial scope of an obligation to remove content published on a host provider’s platform and it does not preclude the platform from being ordered to remove such content worldwide.

In practical terms this means a “takedown order” against a social media platform would require the platform not only to remove the content notified as illegal, but to also search for and remove identical content published or shared by any other user and search for and remove any “equivalent” content published by the original user, on a worldwide basis.

The opinion comes following a referral to the CJEU by the Austrian Supreme Court to consider the scope of the obligation on a host provider to remove illegal content from its platform bearing in mind the prohibition on imposing a general monitoring obligation on host providers under the Directive. Although the AG’s opinion is non-binding, the CJEU follows the opinions of its AGs in the majority of cases.

Background
Ms Eva Glawishchnig-Piesczek (the “Plaintiff”), chair of the Austrian parliamentary party die Grunen (‘the Greens’) and the party’s federal spokesperson had applied to the Austrian courts for an injunction ordering Facebook to cease publication of a comment which was defamatory of her.

When a Facebook user shared an article from Austrian online magazine oe24.at, on their personal page, this generated a “thumbnail” on Facebook containing the title of the article ‘Greens: Minimum income for refugees should stay’ and a photograph of the Plaintiff. The user also published a disparaging comment about the Plaintiff. The content could be accessed by any Facebook user.

When Facebook did not respond to the Plaintiff’s takedown request, the Plaintiff sought an injunction requiring Facebook to halt publication and/or dissemination of photographs of her if the accompanying message disseminated the same allegations and/or ‘equivalent content’. The interlocutory order sought was made and Facebook disabled access to the content in Austria.

Oberster Gerichtshof (Supreme Court, Austria)
Subsequently, the Austrian Supreme Court, having deemed the statements at issue to be intended to defame the Plaintiff, asked the CJEU to interpret the Directive in considering whether an injunction against a host provider could be extended worldwide to statements with identical wording and/or having equivalent content of which the hosting provider is not aware. The Directive states that a host provider, such as Facebook, is, in principle not liable for the content published on its platform by third parties unless it is aware of the illegal nature of that content. This is the “hosting immunity” often referred to in disputes involving social media platforms.

CJEU
In delivering his opinion, the AG considered that the Directive would not preclude a host provider from being ordered to seek and identify, among all the information disseminated on its platform, any content identical to the content that has held to be illegal by a court that issued the injunction. In the AG’s view, this ensures a fair balance between the protection of fundamental rights such as protection of private life, freedom to conduct a business and freedom of expression and information. The AG also opined that this would not represent an extraordinary burden to host providers and the approach advocated was necessary due to the speed at which information can be reproduced online.

In respect of equivalent information, the AG considered that a host provider could also be ordered to seek and identify content equivalent to that held to be illegal, but only among content published by the same user that published that original illegal content. In his view, this would ensure the principle of proportionality is respected, as freedom of expression and information could be threatened if a host provider such as Facebook was obliged to identify equivalent content originating from any user. This would also require expensive solutions on the host provider’s part.

The AG also dealt with the question of the territorial scope of any injunction/court order granted. As the Directive does not regulate the territorial scope of a removal obligation on a host provider, it does not preclude a host provider from being ordered to remove such information worldwide.

Reaction and Commentary
Facebook issued a response to the AG’s opinion expressing its concern that if online defamation is enforceable worldwide, it would allow one country to limit freedom of expression in others. While this was not expressly stated by the AG, clarification of this point is anticipated when the court delivers its full ruling in the coming months. If the court upholds the opinion, there is a concern that repressive regimes could enforce their own national court decisions against hosting providers, thereby censoring criticism of their governments worldwide rather than only within their own territory. Facebook has stated that it hopes the court will clarify that “even in the age of the internet, the scope of court orders from one country must be limited”.

This is obviously countered by the concerns of legitimate parties seeking to remove illegal content, defamatory or otherwise, published on a host provider’s platform in circumstances where an order to remove content with a jurisdictional limit may be ultimately ineffectual given the global nature of the internet.