Facebook and the removal worldwide of defamatory comments

“Directive 2000/31must interpreted as meaning that it does not preclude a host provider operating a social network platform from being ordered, in the context of an injunction, to seek and identify, among all the information disseminated by users of that platform, the information identical to the information that was characterised as illegal by a court that has issued that injunction”.

This is what Advocate General Maciej Szpunar stated in his opinion delivered on 4 June 2019 on the case C-18/18 Eva Glawischinig – Piesczek Vs. Facebook Ireland Limited.

The case moves from the defamatory comments received by Ms Eva Glawischnig-Piesczek, a member of the Nationalrat (National Council, Austria), chair of the parliamentary party die Grünen (‘the Greens’) and the federal spokesperson of that party, on the popular social network called “Facebook”.

Particularly, on 3 April 2016 a user of this social platform shared on his personal page an article from Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’. That publication had the effect of generating on the platform a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of the applicant.

The user commented the published article with degrading affirmation. The content placed online by that user could be consulted by any user of the platform in question. At first, the member of Nationalart, asked Facebook to remove the comment, but nothing has been done, so she brought an action before the Commercial Court of Vienna.

In this place, the applicant requested the court to issue an injunction ordering Facebook Ireland to cease the publication and/or dissemination of the applicant’s photographs if the accompanying message disseminated the same allegations and/or ‘equivalent content’. The court issued the interlocutory order applied for, and Facebook removed the access to the content initially published in Austria. The request’s applicant aimed to remove the content in the worldwide, so the question, faced by the Supreme Court, passed to the European Court of Justice.

The Court of Justice is required to interpret the Ue Directive 2000/31 on electronic commerce on the matter and it is required to decided if the order emitted against the host provider operating the social network platform could be extended also, worldwide, to the textually identical information and/or equal information which the court is not aware of in base on provision at issue.

The Advocate general in his opinion stated that the Ue directive does not preclude a host provider, operating a social network platform, such as Facebook, from being ordered to remove the information identical to those qualified as illegal by the Court that has issued that injunction and then to seek and identify among the information disseminated by its users.

For what concerns the removal worldwide, the Advocated general claimed that the Ue Directive does not regulate about the territorial scope of the obligation to remove the information, textually:

As regards the territorial scope of a removal obligation imposed on a host provider in the context of an injunction, it should be considered that that obligation is not regulated either by Article 15(1) of Directive 2000/31 or by any other provision of that directive and that that provision therefore does not preclude that host provider from being ordered to remove worldwide information disseminated via a social network platform. Nor is that territorial scope regulated by EU law, since in the present case the applicant’s action is not based on EU law”.