“The internet’s not written in pencil, it’s written in ink.”
Advocate General (AG) Szpunar commenced his opinion dated 4 June 2019 in Case C-18/18 (Opinion, available here) with the above quote from the movie The Social Network. In the Opinion the AG analysed the substantive scope of injunctions, in particular if social network providers “may be required to delete, with the help of a metaphorical ink eraser, certain content placed online by users of that platform”, as well as its territorial scope.
An Austrian politician applied at the Vienna Commercial Court (Austria) for an injunction requiring a social network provider to cease the publication of a – in her view – defamatory comment about her. A user of the social network shared an article from a news website on their personal page on the network, whereupon the social network generated a ‘thumbnail’ of that post, containing the title, a brief summary of the article and a photograph of the politician. The user also published a disparaging comment about the politician alongside the post (Content in Question). Any user of the social network was able to access the Content in Question.
The Vienna Commercial Court issued the requested injunction and ordered the social network provider to delete and to stop disseminating the Content in Question. Subsequently, the social network provider disabled access to the content in Austria, but not for other countries. After the Vienna Higher Regional Court upheld the injunction, the case was brought to the Austrian Supreme Court. The Austrian Supreme Court referred to the Court of Justice of the European Union (CJEU) the questions of whether the injunction can be extended (i) worldwide, and (ii) to statements with identical wording and/or equivalent content. The Austrian Supreme Court ultimately asked the CJEU to interpret the Directive on electronic commerce (eCommerce Directive) in this context.
II. Interpretation of the eCommerce Directive and subsequent obligations for providers
- General considerations
According to Article 14(1) and (3) of the eCommerce Directive, a service provider is, in general, not liable for the information stored on its servers by third parties as long as it is not aware of that information’s illegality. However, once made aware of the information’s illegality, the provider is obliged to delete it or block access to it. However, a service provider can neither be placed under a general obligation to monitor the information it stores nor to actively search for illegal activities on its social network (Article 15(1) of the eCommerce Directive).
2. The AG’s Opinion
a. Substantive scope of the injunction
As a key issue, the AG addressed the question of whether the eCommerce Directive precludes a social network provider from being ordered, in the context of an injunction, to seek and identify information identical or equivalent to the information that has been characterised as illegal by that injunction. To answer this question, the AG distinguished between different scenarios in the Opinion:
i. Identical information posted by same and other user
The AG stated in the Opinion that the eCommerce Directive does not preclude a social network provider from being ordered by a court to seek and identify all identical information posted by the same user whose original post has been found to be illegal or by any other user of the network. Thus, social network providers have the obligation to actively seek and remove information that is identical to information that was declared illegal, regardless of who posts it.
According to the AG, the necessary measures that social network providers need to put in place to search for identical information do not involve sophisticated techniques that might constitute an extraordinary burden for the providers. The AG deemed the implementation of such measures as necessary to ensure the effective protection of fundamental rights, such as privacy and personality rights.
ii. Equivalent information posted by same user
The AG opined that the social network provider may also be ordered to seek and identify information equivalent (that is delivering the same message) to the information already characterised as illegal, but only among the information posted by the same user that uploaded the original, illegal information. Because such content is only equivalent and not identical and thus no court has previously decided on its illegality, the interests of both sides must be sufficiently balanced. The rights of both sides (personality rights, freedom to conduct a business and freedom of expression and information) must be weighed up against each other. Furthermore, any courts deciding on the removal of content on public platforms must ensure that the effects of their decisions are clear, precise and foreseeable so that – at best – the publication of equivalent information and subsequent disputes is proactively avoided.
iii. Equivalent information posted by any user
According to the AG, the obligation of a social network provider to seek and identify equivalent information originating from any other user of the social network (and not only from the original author) would not take account of the principle of proportionality. Searches would require the implementation of costly solutions and those solutions might often lead to censorship and the restriction of the freedom of expression.
b. Territorial scope of the injunctions
The AG also dealt with the territorial scope of the injunction, in particular, if the content had to be removed only in the relevant Member State or worldwide.
Neither the eCommerce Directive itself nor other provisions of EU law regulate the territorial scope of an obligation to remove information posted on a social network platform. This is because of the fact that the legal landscape for the underlying scenario (harm to private life and personality rights, including defamation) has not been harmonised and thus the local laws – here, the general provisions of Austrian civil law – apply.
According to the AG, international law does not prevent an injunction from having extraterritorial effects and, in consequence, social network providers may have an obligation to remove content worldwide.
The decision by the CJEU will likely be a landmark decision with regard to intermediary liability. It could set a precedent for how far EU Member State court powers can be extended for social media (and other internet) content that transcends national borders. If the CJEU was to follow the AG, the question of geo-blocking as a measure to obtain proportionate and balanced results in connection with deletion obligations and freedom of expression could become a hot topic. The AG’s Opinion is not legally binding, though, and hence the CJEU’s decision is eagerly awaited.