Member Article

On 3 October 2019, the European Court of Justice (ECJ) published its groundbreaking ruling in case C-18/18 establishing that the EU enables national courts to order information societies such as Facebook to remove defamatory information. This also encompasses equivalent versions of previously declared illegal information. In doing so, the ECJ effectively held that EU law does not preclude injunctions issued by national courts from producing worldwide effects. In effect, this grants national courts authority to issue worldwide binding orders against information societies. The judgment establishes important clarifications on individuals' rights versus information societies.

The judgment concerns the interpretation of Article 15 of the Directive on electronic e-commerce (Directive 2000/31), which provides that: "Member States shall not impose a general obligation on providers, when providing the services covered by [the Directive] to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity."

The Austrian Supreme Court referred the dispute in question to the ECJ. The dispute originates from a 2016 Facebook post, posted by a regular user on his personal profile. It concerns Ms. Eva Glawischnig-Piesczek, who is a member and federal spokesperson of the Austrian National counsel for 'die Grünen' (The Greens). The post included an article from the Austrian online news magazine oe24.at entitled 'Greens: Minimum income for refugees should stay'. The inclusion of the link had the effect of generating a thumbnail of the original site, which contained the title and a brief summary of the article, and a photograph of Ms. Glawischnig-Piesczek. The Facebook post also included the user's insulting and defamatory personal comments, which the Austrian court found harmful to the reputation of Ms. Glawischnig-Piesczek under Austrian law. The post was publicly available for any Facebook user worldwide.

Despite Ms. Glawischnig-Piesczek's requests, Facebook refused to remove the disputed comments. This forced Ms. Glawischnig-Piesczek to bring an action before the Commercial Court in Vienna. The Austrian courts concluded, also on appeal, that the published comment contained statements that were excessively harmful to the reputation of Ms. Glawischnig-Piesczek and, in addition, gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard. The court, ordered Facebook Ireland, with immediate effect and until the proceedings relating to the action for a prohibitory injunction had been finally concluded, to cease and desist from publishing and/or disseminating photographs of Ms. Glawischnig-Piesczek [in the main proceedings] if accompanied by harmful, insulting and defamatory assertions by the Facebook user.

Facebook Ireland complied, but only insofar as to disabling access to the comments for Austrian's users. The problem was that the defaming content still was fully accessible for all other users across Facebook's vast platform. Understandably, this was not an acceptable solution for Ms. Glawischnig-Piesczek.

The dispute was ultimately tried before the Austrian Supreme Court, which in turn referred the questions regarding the applicability and limitations of Directive 2000/31, Article 15(1) to the ECJ. In particular, whether national courts in these instances are permitted to:

• order host providers to remove information which it stores, the content of which is identical to the content of information which was previously declared to be illegal, or to block access to that information, irrespective of who requested the storage of that information;
• order host providers to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information, and
• extend the effects of that injunction worldwide.

The Austrian Supreme Court referred the questions to the ECJ, which concluded that it is a national court's legitimate interest to attain the necessary jurisdiction to prevent the continued breach of its national's rights. This also includes the authority to force host providers to remove or block access to stored information, previously deemed illegal by the national court. This would be the case irrespective of who requested the storage of that information.

The intention behind the court's injunction is to end an illegal act and to prevent it from repeating. In effectively meeting these objectives, it is crucial that the injunction has sufficient reach. This means that it would cover identical information, but also other variations, in so far these essentially convey the same message. The effect of any less reach would render such injunctions ineffective by circumvention. It would enable the posting of several different versions of the defamatory content, which in turn would force the defamed person to initiate multiple proceedings in order to end defamatory conduct.

The ECJ also observed that Article 18(1) of Directive 2000/31 does not make provision for any limitation, including a territorial limitation, on the scope of the measures which Member States' courts are entitled to adopt in accordance with the directive. Consequently, EU law does not preclude national injunction measures from producing effects worldwide.

This is not to say that the ECJ also considered the issue from the host provider's perspective. Injunctions by national courts do, in other words, not impose on the host provider an obligation to monitor 'generally' the information, which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity. Indeed, the ECJ concluded that the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to generally monitor stored information, or a general obligation to actively seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31. This is an important clarification by the ECJ on the interpretation of EU-law that underscores that the right of individuals' protection by law also is a fundamental principle of national law that cannot be set aside because of the EU law harmonization in this field.

The ECJ also noted that, in view of the global dimension of e-commerce, the EU legislature considered it necessary to ensure that EU rules are consistent with the rules applicable at the international level. Ultimately it is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules.

About the Authors

Jan Magne Langseth, partner and lawyer, is the head of SVW's competition practice. He is ranked as a leading competition lawyer in Chambers, EL500 and Who's who/GCR. Dr. Nicholas Foss Barbantonis is a trademark specialist and lawyer working for the technology and media team.