European Union law does not preclude the Facebook digital platform from being forced to search for and remove, at a global level, information identical to other information recognised as unlawful by a court and invading privacy, Advocate General Maciej Szpunar stated in his Opinion delivered on Tuesday 4 June (Case C-18/18).
Similarly, the digital giant could be forced to identify and remove information equivalent to what is considered illegal, but only among information disseminated by the same user.
Austrian ecologist Eva Glawischnig-Piesczek, the federal spokesperson for her party, requested and obtained an order from a court of first instance in her country to stop Facebook Ireland from publishing a defamatory comment published by a user, making it inaccessible in Austria.
This user had shared on his personal page a vignette consisting of a summary of an article from oe24.at magazine (according to which the Greens advocated maintaining a minimum income for refugees) and a photograph of Mrs Glawischnig-Piesczek. This vignette, as well as a degrading comment about the politician, was visible to all Facebook users.
The Austrian Supreme Court is asking the European Court of Justice to interpret the Directive (2000/31/EC) governing electronic commerce to determine whether the injunction to cease publication can be extended worldwide to the same or equivalent content, of which Facebook is not aware.
According to this directive, a host operating a social network must remove or block access to information stored by third parties on its servers as soon as it is informed of the illegality of this information (see EUROPE 10555/37). However, it cannot be compelled to monitor the information it stores, nor to actively seek facts or circumstances that reveal illegal activities.
In his conclusions, Mr Szpunar considers that the 'electronic commerce' directive does not preclude a host such as Facebook from being forced, by an injunction from a court, to seek and identify information identical to that considered unlawful, in particular because it infringes privacy. The same may also apply to information equivalent to unlawful information, but only among information disseminated by the user who disseminated that information.
In both cases, the aim is to ensure a fair balance between privacy and freedom of expression and to undertake, while taking into account the ease of reproduction of information in the digital world.
According to the Advocate General, seeking identical unlawful information does not require sophisticated technical means imposing an extraordinary burden. On the other hand, the obligation to identify equivalent information from any user would not ensure a fair balance between the fundamental rights in question, as it would require costly solutions and lead to censorship, Mr Szpunar believes.
Moreover, the Advocate General notes that the Directive does not regulate the territorial scope of an obligation to withdraw information disseminated on a social network. EU law therefore does not preclude a host from being forced to remove information deemed illegal worldwide, he believes.
In the present case, Ms Glawischnig-Piesczek relies on provisions of Austrian civil law relating to privacy and personality rights, including defamation, which are not harmonised at European level. Issues relating to the extraterritorial effects of an injunction imposing an obligation to withdraw and the territorial scope of such an obligation must therefore be analysed in the light of public and private international law, the Advocate General emphasises.
See the conclusions: http://bit.ly/2HT6duI (Original version in French by Mathieu Bion)