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Provisional text JUDGMENT OF THE COURT (Third Chamber) 3 October 2019 (*) (Reference for a preliminary ruling — Information society — Free movement of services — Directive 2000/31/EC — Liability of intermediary service providers — Article 14(1) and (3) — Hosting services provider — Possibility of requiring the service provider to terminate or prevent an infringement — Article 18(1) — Personal, material and territorial limits on the scope of an injunction — Article 15(1) — No general obligation to monitor) In Case C‑18/18, REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 25 October 2017, received at the Court on 10 January 2018, in the proceedings Eva Glawischnig-Piesczek v Facebook Ireland Limited, THE COURT (Third Chamber), composed of A. Prechal, President of the Chamber, F. Biltgen, J. Malenovský (Rapporteur), C.G. Fernlund and L.S. Rossi, Judges, Advocate General: M. Szpunar, Registrar: D. Dittert, Head of Unit, having regard to the written procedure and further to the hearing on 13 February 2019, after considering the observations submitted on behalf of: – Ms Glawischnig-Piesczek, by M. Windhager and W. Niklfeld, Rechtsanwälte, – Facebook Ireland Limited, by G. Kresbach, K. Struckmann and A. Tauchen, Rechtsanwälte, – the Austrian Government, by G. Hesse, G. Kunnert and A. Jurgutyte-Ruez, acting as Agents, – the Latvian Government, by I. Kucina, E. Petrocka-Petrovska and V. Soņeca, acting as Agents, – the Portuguese Government, by L. Inez Fernandes and M. Figueiredo, acting as Agents, and T. Rendas, Legal Adviser. – the Finnish Government, by J. Heliskoski, acting as Agent, – the European Commission, by G. Braun, F. Wilman, S.L. Kalėda, and P. Costa de Oliveira, acting as Agents,

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Glawischnig-Piesczek v. Facebook Ireland Limited

Case Law

Country

Austria

Country Location

Latitude: 47.73397739577197

Longitude: 14.591648988772429

Country Location (linked Case Law): Austria

Decision Date: Oct 3, 2019

Case Status: Closed

Case Outcome (Procedural)

Remanded for Decision in Accordance with Ruling

Case Outcome (Disposition)

Access Restriction/Content Regulation/Information Control
Advisory Opinion/Preliminary Ruling

Keywords

Content Moderation
Defamation / Reputation
Social Media

Judicial Body: Court of Justice of the European Union (CJEU)

Court Name: Court of Justice of the European Union (CJEU)

Case Number: Case C-18/18

Case Summary: The Third Chamber of the Court of Justice of the European Union (‘CJEU’) found that the E-Commerce Directive (‘the Directive’) does not preclude a Member State from ordering a hosting provider to remove or block content that has been declared unlawful, or content that is identical or equivalent to such unlawful information. The Court also held that the Directive does not preclude Member states from ordering such removal worldwide, and therefore left it to the Member States to determine the geographic scope of the restriction within the framework of the relevant national and international laws. The case arose in 2016 when an anonymous Facebook user in Austria shared an article and a defamatory comment against the applicant Eva Glawischnig–Piesczek, an Austrian politician. Ms. Glawischnig-Piesczek obtained an injunction from the Vienna Commercial Court to remove the infringing content as well as text with an equivalent meaning, after which Facebook disabled access to the impugned content in Austria. The Vienna Higher Regional Court upheld this injunction but limited the blocking of equivalent content upon notice given by Ms. Glawischnig-Piesczek or a third party to Facebook. Both parties appealed the decision to the Austrian Supreme Court, which referred to the CJEU the question of the scope of content to be removed as well as the territorial scope of the removal. The Court found that monitoring for identical content to that which was declared illegal, would fall within the allowance for monitoring in a “specific case” and thus not violate the Directive’s general monitoring prohibition. This allowance could also extend to equivalent content providing the host was not required to “carry out an independent assessment of that content” and employed automated search tools for the “elements specified in the injunction.”

Case Significance: The judgment contracts expression on a number of ways. First, it requires social media intermediaries to employ automated search filters to remove identical posts as well as “equivalent” content without regard to the context in which they may be posted. The filtering must also take place across all users. Second, it puts false faith in the ability of such filters to correctly identify and remove the impugned content. Third, contrary to the opinion of the Advocate General, the judgment leaves the meaning of ‘equivalent information’ vague by not defining it in precise or foreseeable terms. It also leaves it to the national courts to precisely define the parameters of any “equivalent” content in the injunction, without considering that the relevant court may not fully appreciate the limitations of the filters even when the terms are precise. Fourth, the required principle of proportionality and balancing of fundamental rights from the AG’s opinion, is not clearly stated or stressed, although it may be implied in the Courts understanding of “within a framework of relevant international law.” These shortfalls in the judgment may lead to over broad removal of content, including legal content, ultimately, infringing on freedom of expression.

Regarding the potential for global removal, ARTICLE 19 argues that “[t]he ruling also means that a court in one EU member state will be able to order the removal of social media posts in other countries, even if they are not considered unlawful there. This would set a dangerous precedent where the courts of one country can control what Internet users in another country can see. This could be open to abuse, particularly by regimes with weak human rights records.” Even in the present case, some of the content found to be illegal in Austria would likely have been found to be honest comment, and hence not unlawful, under UK defamation law.

Cathryn Hopkins, writing for Inforrm’s Blog, points out in an excellent analysis that on the positive side, the monitoring is restricted to content declared illegal by a court, meaning that it “does not relate to content that is the subject of a notice and take down request under Article 19 ECR that is complied with, or content that is subject to out of court settlement.” However, she warns that the ruling could lead to forum shopping since defamation laws are not harmonized. Plaintiffs may attempt to bring defamation cases in “claimant-friendly” jurisdictions knowing that they could result in global takedowns.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Related Caselaw (self)

Künast v. Facebook

Related Analysis

Case Law on Content Moderation and Freedom of Expression

Source URL: Global Freedom of Expression

Collection

Columbia

Date Updated: Jul 19, 2024

Primary Documents

Official Judgment
English
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