October 4, 2019

In Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited, the Court of Justice of the European Union provided new guidance on the liability of hosting platforms for illegal content on their services. In short, it held that Member State courts may order platforms to take down illegal content and ensure that identical and equivalent content is also taken down. The effect of such orders may extend globally, subject to compliance with relevant international law, which is for the Member State courts to assess.

The Court of Justice of the European Union handed down judgment in Glawischnig-Piesczek v Facebook on 3 October 2019.

The case concerns an Austrian politician who requested Facebook to remove certain defamatory comments about her. Facebook did not remove the comments, whereupon she sought an injunction to compel it to: (i) remove the comments about her, (ii) remove identical comments and (iii) remove equivalent comments, all on a global basis. In the course of the proceedings, the Oberster Gerichsthof (the Austrian Supreme Court) sought guidance from the CJEU on whether it was able to issue such an order, in light of the liability regime set out in the E-Commerce Directive.

Under the E-Commerce Directive information society services, benefit from a liability limitations for certain activities, including “passive” hosting. If the hosting platform has knowledge of illegal information, it must act expeditiously to disable access to such information or face losing the benefit of the liability exemption.

The hosting liability exemption does not preclude Member States from issuing injunctions to terminate or prevent an infringement, but Member States may not impose on platforms a general obligation to monitor the information they host or to actively seek facts or circumstances indicating illegal activity.

Prior to Glawischnig-Piesczek v Facebook , the CJEU had considered the hosting liability limitation in two key cases. In Google France, relating to Google’s provision of the AdWords ad referencing service, the CJEU held that “it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores”.

In L’Oréal v eBay the CJEU focused on the role of a platform as a “diligent economic operator”. The court held that generalised knowledge of infringing activity will not in itself take a platform out of the hosting liability limitation, but: “it is sufficient…for it to have been aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question.”

At the outset, it is worthwhile noting that the specific question of whether Facebook is an information society service within the meaning of the E-Commerce Directive, such that it can benefit from the liability regime, was not specifically addressed by the Court. It noted instead that this was common ground between the parties and proceeded to consider the types of orders that Member State courts can hand down.

The Court held that national courts can order platforms to take down both a specific piece of content as well as identical content.

In addition, it held that an order must also extend to equivalent content, that is, content which essentially conveys the same message, albeit slightly differently worded. The Court recognised that otherwise it would be too easy to circumvent an order. However, the Court was careful to delimit the obligation on platforms, by stating that the equivalent information had to be identified in the order, such that the hosting provider did not have to carry out an independent assessment of what constitutes equivalent content. The monitoring and searching required to comply with such an order was not excessive, since hosting platforms have automated search tools and technologies. Such an injunction ensures a proper balance is struck and does not impose on the host provider an obligation to monitor generally the information which it stores or a general obligation to actively seek facts or circumstances indicating illegal activity, contrary to Article 15.

Finally, the Court found that the E-Commerce Directive does not preclude orders from producing worldwide effects, provided that is consistent with international law, which is for the Member States to assess.

This is the first time the Court provides guidance on the question of how specific measures must be in order not to fall foul of Article 15. It is also a very timely judgment, being handed down against the backdrop of the potential re-opening of the E-Commerce Directive by the European Commission. One might question whether further legislation, including a re-opening of the E-Commerce Directive, in this area is necessary.