CJEU rules, in Eva Glawischnig-Piesczek v Facebook, that EU law does not prevent Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal nor does it prevent such orders applying worldwide.
The Court of Justice of the European Union has ruled in Eva Glawischnig-Piesczek v Facebook Ireland Limited C-18/18, that EU law does not prevent a host provider, such as Facebook, from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal. In addition the CJEU has ruled, controversially, that EU law does not prevent such an injunction from applying worldwide, within the framework of the relevant international law. It is for member states to take that framework into account.
An Austrian politician sued Facebook Ireland in the Austrian courts. She sought an order requiring Facebook Ireland to remove a comment published by a user which was harmful to her reputation, and allegations which were identical and/or of an equivalent content.
The Facebook user in question had shared an article on their personal page. That generated a ‘thumbnail’ of the original site on the user’s personal page, containing the title and a brief summary of the article, and a photograph of the politician. The user also published, in connection with that article, a comment which the Austrian courts found to be harmful to the reputation of the politician, and which insulted and defamed her. This post could be accessed by any Facebook user. The politician asked Facebook Ireland to remove the post. Facebook Ireland disabled access in Austria to the content initially published.
The Austrian referring court asked the CJEU to interpret Directive 2000/31/EC on electronic commerce.
Under that directive, a host provider such as Facebook is not liable for stored information if it has no knowledge of its illegal nature or if it acts expeditiously to remove or to disable access to that information as soon as it becomes aware of it. However that exemption does not prevent the host provider from being ordered to terminate or prevent an infringement, including by removing the illegal information or by disabling access to it. However, the directive prohibits any requirement for the host provider to generally monitor information which it stores or to actively seek facts or circumstances indicating illegal activity.
The questions referred were whether Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it precludes a court of a Member State from:
The court’s ruling
The CJEU ruled that the directive seeks to strike a balance between the different interests at stake. As a result, it does not prevent a member state’s court from ordering a host provider: