“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.