CJEU: European law does not prevent a national court from ordering a hosting provider to remove identical or equivalent content, also worldwide

Only a couple of weeks after the decision on the Google v. CNIL issue, the Court of Justice of the European Union was asked to rule again on issues of international law in a matter concerning the Internet. In the landmark decision of 3 October 2019, in Case C-18/18 Facebook Ireland v. Eva Glawischnig-Piesczek, the Justices issued some interesting principles with regard to hosting providers, under Directive 2000/31/EC, i.e., the “Directive on electronic commerce”.

The case arose in Austria where Ms. Eva Glawischnig-Piesczek sued Facebook Ireland, hosting provider of the Facebook service, because it failed to remove access to a defamatory comment against her. The local court upheld the petition and issued an order against Facebook Ireland to stop publishing and/or disseminating pictures of the petitioner with accompanying text containing statements with words having identical or equivalent meanings to those declared defamatory.

Facebook Ireland geo-blocked the content from Austria.

The first instance’s court decision was confirmed on appeal and both parties filed an additional appeal before the Supreme Court of Austria. The latter decided to stay the proceedings and request a preliminary ruling from the CJEU, in brief, on two sets of questions: (1) whether a removal order can have effects worldwide; and (2) whether the removal order can concern also content not identical, but with an equivalent meaning.

At the end, the CJEU concluded not only that European Union law does not prevent a national court from ordering a hosting provider to remove access to a certain piece of content also worldwide, but also that the removal order can be directed towards content which is identical or equivalent to the content which was previously declared unlawful by the court.

With regard to the latter issue, as is widely known, the laws of Member States cannot require hosting providers to generally monitor the information stored or to actively seek facts or circumstances indicating the presence of an unlawful activity using their services. This principle is the cornerstone of the entire legislative architecture imposed on the internet service provider and the CJEU confirmed it.

The Justices held that this fundamental principle is not incompatible with an order by a national court that targets not only a specific unlawful piece of content, but also content that is identical or equivalent to the one deemed unlawful. The Justices, in fact, confirmed that the removal injunction must be limited to content that is essentially unchanged, insofar as the hosting provider is not required to carry out an independent assessment on equivalent content. The CJEU – in fact – recognized that the hosting provider can implement automated search tools and technologies to locate identical or equivalent content and remove it.

In the CJEU’s opinion, these limits are sufficient to ensure an appropriate balance between the principles of the electronic and with victim’s rights. Victims, in fact, do not need to initiate multiple proceedings to stop unlawful conduct that is essentially conveying the same (already declared unlawful) message, but using only slightly different words or their combination.

The second issue that the CJEU faced was whether such an order can have worldwide effects. Based on a strict interpretation of the electronic commerce directive, the Justices concluded that EU law does not prevent a national judge from issuing a worldwide removal order.

However, the CJEU pointed out that EU rules must be consistent with international law provisions and – therefore – it is up to the national court to seek this balance.

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