BREAKING: CJEU rules that an intermediary can be ordered to remove content identical and equivalent to that found illegal, also worldwide

Eva Glawischnig-Piesczek

How far can the removal obligations of an online intermediary go without breaching the no general monitoring obligation in Article 15 of the E-commerce Directive? Can an intermediary be ordered to remove content worldwide? And what can be the personal (original user and other users) and material (identical and equivalent content) scope of an injunction to remove content?

These were the important (and complex) questions at the heart of the referral to the Court of Justice of the European Union (CJEU) in Glawischnig-Piesczek, C-18/18.

Background

In 2018, the Austrian Supreme Court made a CJEU referral in the context of proceedings relating to an injunction that an Austrian politician, Eva Glawischnig-Piesczek, had sought against the operator of an online social networking site (Facebook), following the initial refusal – by the latter – to remove a disparaging statement published as a public post by a user of its platform. The content at issue had been made available as a commentary to a third-party news article shared through that post. 

The Vienna Commercial Court issued the injunction against Facebook, and ordered it to: 

1. remove the post in question; 
2. remove any identical posts; and 
3. remove any equivalent posts that would harm Glawischnig-Piesczek’s personality rights.

Facebook complied with the order, in that it disabled the at-issue post, but only in Austria. 

On appeal, the Vienna Higher Regional Court upheld the order issued at first instance as regards identical content, and dismissed Facebook’s request that the injunction be limited to Austria. However, it overruled the earlier decision in relation to 3., holding that the resulting obligation would be overbroad and unduly compress users’ freedom of expression. That court ordered that removal of equivalent content should only be done in relation to content brought to Facebook’s attention by the applicant, third parties or otherwise. 

Both parties appealed to the Austrian Supreme Court, which decided to seek guidance from the CJEU on the material, personal, and territorial scope of an injunction like the one sought by Glawischnig-Piesczek. 

The original post published on Facebook

The AG Opinion

In his Opinion a few months ago [Katpost here; see here for my more extensive discussion], Advocate General (AG) Szpunar advised the CJEU to rule that Article 15(1) of the E-commerce Directive does not preclude a host provider from being ordered – by means of an injunction – to seek and identify, among all the information disseminated by users of its service, information identical to the information that the court, which issued the injunction, found illegal. 

With regard to equivalent information, Article 15(1) would not preclude a host provider from being ordered to search and identify such information in relation to the user who initially disseminated the illegal piece of information. A host provider would be also required to remove equivalent information disseminated by other users when awareness resulted from a notification made by the concerned person, third parties or another source. 

As explained in the Opinion, ‘identical’ content means both precise manual reproductions of the information, which a court or competent authority has characterized as illegal, and automated reproductions, made through the ‘share’ function on the platform run by the intermediary targeted by the injunction. 

The notion of ‘equivalent’ content is more ambiguous, also because the referring court failed to define it. However, the AG assumed that this concept would relate to “information that scarcely diverges from the original information or to situations in which the message remains essentially unaltered”, that is “a reproduction of the information that was characterised as illegal containing a typographical error and a reproduction having slightly altered syntax or punctuation constitutes ‘equivalent information’. It is not clear, however, that the equivalence referred to in the second question does not go further than such cases.”

With regard to the territorial scope of such injunction, the AG noted that international or EU law does not prohibit orders to remove information worldwide per se. In principle, a national court may adjudicate on the worldwide removal of information disseminated through the internet, in accordance with public and private international law. However, respect of both proportionality and international comity require that any resulting removal obligation does not go beyond what is necessary to achieve the protection of the injured person.

Today's judgment

In today's judgment [not yet available on the Curia website], the CJEU ruled that a hosting platform like Facebook can be ordered to remove content identical and equivalent to that found illegal.

As explained in the press release, "EU law does not preclude a host provider such as Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal. In addition EU law does not preclude such an injunction from producing effects worldwide, within the framework of the relevant international law which it is for Member States to take into account".

More specifically, the E-commerce Directive does not preclude a court of a Member State from ordering a host provider: 

• to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information; 
• to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content (thus, the host provider may have recourse to automated search tools and technologies); 
• to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law, and it is up to Member States to take that law into account.

A more detailed analysis will be provided shortly.

[UPDATE at 10:00 am BST: the text of the judgment is now available here]