The decision of the CJEU in this case in which a hosting provider can be required to remove content on a global level in the context of a EU Member State Court injunction within the framework of international law, exemplifies the global reach of European regulators with the Internet.
Here’s a little background on the case and the decision.
In 2018 the Austrian courts requested from the Court of Justice of the European Union clarification with respect to the scope of the E-Commerce
Directive and host provider privilege.
The referred case concerned Ms. Eva Glawischnig-Piesczek, a politician, who had sued Facebook Ireland in the Austrian courts with the objective of forcing Facebook Ireland to delete a comment on the social network made by another user elaborating and sharing a news article which she considered to be “harmful to her reputation, and allegations which were identical and/or of an equivalent content.”
Facebook complied with the order and removed the comment, but deleted the content only in the Austrian jurisdiction, filing an appeal in which the court of second instance partially upheld the court of first instance’s decision, therefore requiring Facebook to delete any future postings of the image Ms. Glawischnig-Piesczek had requested to be deleted, but specifying that future postings needed to be deleted only when such content is notified to them. A second appeal was filed by both parties and the Austrian courts decided to request clarification on the material, personal, and territorial scope of such injunction.
According to the E-Commerce 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.” Such “exemption does not, however, 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 monitor generally information which it stores or to seek actively facts or circumstances indicating illegal activity.”
The CJEU determined, therefore, that the E-Commerce Directive does not preclude a court of a Member State from ordering a host provider:
1. “to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information”;
2. “to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content (thus, the host provider may have recourse to automated search tools and technologies)”;
3. “to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law, and it is up to Member States to take that law into account”.