The Court of Justice of the European Union has clarified the criteria for the exemption of host providers from liability under the e-Commerce Directive. In a ruling handed down on Thursday, October 3, the judges in Luxembourg ruled that a national authority could require Facebook to remove, worldwide, comments deemed "equivalent" to another comment previously declared to be illegal (Case C-18/18).
Eva Glawischnig-Piesczek, Chair of Austria’s Green 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. A user of the platform had posted an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’ and a photograph of Ms Glawischnig-Piesczek. But both parties appealed and the case ended up before the Austrian Supreme Court, which was charged with answering whether the injunction against Facebook could be extended to "identical content" of which it has no knowledge and on the geographical scope of the injunction.
The Austrian Court therefore asked European judges to clarify the scope of the Electronic Commerce Directive (2000/31/EC), which exempts from liability a host provider that either has no knowledge of the unlawful activity or information or acts promptly to remove or prevent access as soon as it becomes known (a clause more commonly known as Safe Harbour). While it allows a court or administrative authority to ask the host provider to stop or prevent a breach, it does not allow for a requirement for an online platform to monitor generally information which it stores or to seek actively facts or circumstances indicating illegal activity.
In its judgment, the Court of Justice of the European Union sided with the applicant, thus supporting the reasoning of the Advocate General (see EUROPE 12268/19). The judges noted that, while the e-commerce directive precludes a general duty of supervision, it does not prohibit a duty of supervision "applicable to a specific case", as in the case of Mrs Glawischnig-Piesczek.
More specifically, the Court considers that an administrative or judicial decision may be extended to content deemed identical or of equivalent content, i.e. which includes the same message with different words. It specifies that this is not an "excessive" obligation, insofar as "the monitoring and research it requires is limited to information containing the elements specified in the injunction and their defamatory content of an equivalent nature does not oblige the host provider to carry out an autonomous assessment, thus allowing the host to use automated techniques and search means". On the question of geographical scope, the judges concluded that the Directive does not preclude "such an injunction from producing effects worldwide". (Original version in French by Sophie Petitjean)