knowledge 4 October 2019 |

Facebook Responsible for Worldwide Removal of Defamatory Comments

One condition, contained in Article 15(1), was to prohibit member states from generally obliging providers (into which category social media companies subsequently fell) from monitoring the content on their sites.

The practical implications of prohibition in Article 15(1) on the monitoring of content were considered in Eva Glawischnig-Piesczek v Facebook Ireland Limited¹.  In this case, the European Court of Justice (“ECJ”) was asked to consider a social media company’s obligations under the E-Commerce Directive once informed that it is hosting defamatory or illegal content.

Facts

The applicant, Ms Glawischnig-Piesczek, was the federal spokesperson for and parliamentary chair of the Green Party in Austria.  On 3 April 2016, a Facebook user posted on their personal page a news article bearing the headline “Greens: Minimum income for refugees should stay”.  The user’s post also contained a photograph of the applicant and some commentary about her which she considered defamatory.

The applicant wrote to Facebook requesting the removal of the user’s comment. It appears that Facebook did not accede to the request for removal because on 7 December 2016 the applicant obtained an interim order in the Commercial Court of Vienna requiring Facebook to cease and desist from publishing the applicant’s image where it was accompanied by the same commentary and also commentary of equivalent meaning.

The case worked its way through the Austrian courts and was ultimately referred by the Austrian Supreme Court to the ECJ on a preliminary reference on a point of law. 

Questions asked of the ECJ

While it was not in controversy that a national court may order the removal of content, the ECJ was asked to decide, inter alia, whether Article 15(1) of the E-Commerce Directive prevents a national court from making an order which:

1. requires the removal of content identical to content which has already been declared illegal; and
2. requires the removal of content which is equivalent to content which has already been declared illegal.

The ECJ was also asked to rule on the territoriality of any such order, specifically, whether such an order was capable of worldwide effect.

Decision of the ECJ

The ECJ’s analysis started by establishing that the E-Commerce Directive allows national courts to impose injunctions on hosts even where the host would not otherwise be considered liable for any illegality it contains. 

On the first question in the reference, the ECJ noted that due to the swiftness with which information could be reproduced online, there was a risk of material already assessed as being illegal being uploaded again.  Therefore it was legitimate for a court to require that a host should block or remove content identical to that which had already been declared illegal.  The court reasoned that this did not constitute a general obligation of the type prohibited by Article 15(1) in view of the fact that the content would be identical to that the subject of an existing ruling.

On the second question, the court reasoned that the harm caused by a defamation stemmed from the content and meaning of a statement, not from the particular combination of words used.  Therefore for a court order prohibiting publication of illegal material not to be rendered redundant by small alterations to wording, words of equivalent effect must also be subject to the prohibition. 

However, to avoid infringing the proscription against requiring hosts to police content generally, the court held that the injunction against words of equivalent effect must account for specific elements such as: “the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal”.

On the question of territoriality, the court noted that the provisions of the E-Commerce Directive enabling national courts to make injunctive orders do not preclude measures of worldwide effect.  However, the court held that in light of recitals 58 and 60 of the Directive, which concern the global dimension to electronic commerce, it would be for member states to ensure that any worldwide orders account for applicable international rules.

Comment

This is a very significant judgment for service providers under the E-Commerce Directive.  Its effect would appear to impinge most acutely on social media companies which are likely to host material capable of defamatory import. While the decision does not render a social media company liable as publisher for the purposes of defamation law, it does raise questions about the obligations of a company to remove offending content on a worldwide basis once it has been notified of its illegality.

Contributed by Christopher McCann