On October 3 the CJEU delivered the judgment (text of the judgment and AG Szpunar’s opinion) in the C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Ltd. The case concerned a request by an Austrian politician for an interim measure removing a defamatory post already declared as such in separate court proceedings in Austria. The reference for a preliminary ruling requested the interpretation of Article 15 of the Electronic Commerce Directive (ECD, text here). In specific, the question was whether the article prohibits
ordering a host provider 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;
ordering a host provider 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
extending the effects of that injunction worldwide.
The most important part of the reference is whether the injunctive relief issued by a national (Austrian) court should be of limited territorial scope (worldwide, EU or local). Also important is the nature of the elimination that can be requested (“identical” vs “equivalent” content). A number of dramatic interpretations have been seen in the media (see also here and here) and a basic clarification is in order (see my earlier post on AG Szpunar’s Opinion here).
1) The ECD insulates bona fide intermediaries from liability when they expeditiously remove the problematic material. Although Facebook is a hosting provider in terms of Article 14 ECD(3) and Recital 45, national courts may issue interim measures requesting that illegal material be removed. Although Article 14 controls the liability regime and sets its boundaries, it does not control the possibility for the material to be removed through various judicial and administrative measures. A non-liable intermediary can be forced to remove material through injunctive relief requested in national courts. This is not a new position in EU law and is based not only in ECD (dating to 2001) but is also recognised in CJEU case law (see Husovec’s study on injunctions against intermediaries in EU law here). Furthermore, Facebook’s refusal to remove the material presumably also removed its insulation (which was not the subject of this case).
2) Article 15 ECD prohibits content monitoring, the idea being that only prior knowledge or subsequent reluctance can bring liability. Intermediaries are, therefore, not expected to take active steps to filter content. On the contrary, CJEU has been clear in prohibiting general filtering, limiting any such measures to specific content. The question in the present case is whether Article 15 might interfere with the request to remove the defamatory content. The Court says that it does not, saying that the explicit purpose of Article 15 is to prohibit general but allow specific monitoring which may be necessary for law enforcement purposes. Specific is for this case defined as
“a particular piece of information stored by the host provider concerned at the request of a certain user of its social network, the content of which was examined and assessed by a court having jurisdiction in the Member State, which, following its assessment, declared it to be illegal.”
In that sense, it is OK to request the blocking of “identical” content in the future which is here the content “essentially conveying the same message”. The court is specific in reiterating that such monitoring cannot be general in nature. An injunction requesting that all posts of certain nature be filtered (e.g. by type of content, region, poster, etc.) would be generic and thus contrary to Article 15.
3) Much has been made in the media of the real or potential extraterritorial effect of the injunction in question. EU itself does not itself provide any injunctive relief, extraterritorial or otherwise. Article 35 of the Brussels I Recast regulation is explicit in stating that provisional measures depend on the laws of Member States even in case where litigation is ongoing in a different state. The Court in this case is simply stating that Article 18 ECD, which says that “Member States shall ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved” does not prevent the worldwide effect of injunctions. It does not say anything about the desirability of such injunctions or their potential effect in worldwide digital trade. Put simply, if Austrian court itself had no basis in its national law to issue a worldwide injunction, EU law could not provide it with such a basis. Equally important is the Court’s refusal to enter into debating the merits of such worldwide injunctions. “It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of [international law].” This is the right approach as CJEU manifestly lacks jurisdiction on this issue.
4) The main difference between Advocate Gerenal Szpunar’s opinion and the final judgment is in the treatment of “identical” versus “equivalent”. The AG’s opinion allows the monitoring to take place on all the information of all the users on the platforms for “identical” information but only on the disseminator’s account for “equivalent” information. This is both justified and reasonable. No such distinction exists in the Court’s judgment, which allows monitoring for both identical and equivalent. Furthermore, the AG insists that monitoring of “equivalent” information be “clear, precise and foreseeable” and that it be proportionate and in respect of fundamental rights. Again, the Court’s judgment mentions none of these limitations. Instead, it opts for the more formalistic approach, stating that “equivalent” information must be “essentially unchanged compared with the content which gave rise to the finding”. As long as the content is “essentially” the same, the manner of monitoring is not relevant. The Court’s opting for the narrower and less balanced view might conceivably lead to problems.
5) One of the most important reservations was voiced against the Court’s insistence on the balancing role the filtering is supposed to play. The worry is that filtering mechanisms are inherently unable to exercise the right balance between different fundamental freedoms (such as reputation or freedom of expression). The danger does not arise from the Court’s interpretation and likely not from national law’s use of extraterritorial measures but from the EU legislation and soft law. The new EU law on copyright, for example, fundamentally misunderstands its own relationship with the ECD and effectively requires monitoring in open violation of Article 15 and CJEU’s case law on filtering. Furthermore, various forms of soft law (see my earlier post here) is directed at platforms which would need to engage in various forms of monitoring and filtering. It is true that the Court itself refers to Facebook’s “recourse to automated search tools and technologies” but does not endorse them. The Court does not insist on filtering, does not propose filtering techniques of a particular kind or form and does not explicitly offer any balancing guidelines. In our opinion, it is right to be silent on these issues as anything else would be second-guessing the lawmaker.
There are plenty of reasons to worry about the EU’s muddled approach to platforms and filtering (see my article here) but the Court’s constitutionally-limited role means it does not have the mystical powers that the general public ascribes to it.
6) Some confusion may arise with the CJEU’s recent case on a somewhat connected (although substantially different) issue. In C-507/17 Google v CNIL, the Court ruled that the operator of a search engine is not required (on the meaning of this, see here) to carry out a de-referencing on all versions of its search engine but only on EU-based ones. This case is based on privacy laws (the old Data Protection Directive) and is in no way connected to the present situation.
More important, perhaps, are the possible differences between the Court’s approach to intermediaries in general and its approach to injunctions in copyright cases. While the former is rudimentary, the latter is significantly more detailed. In any case, it is doubtful if injunctions arising out of EU data protection, copyright and e-commerce laws ought to be subject to the same treatment. Such approach would make little sense and would be practically messy and difficult to justify.
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In summary, all the Court did in the present case was to say that injunctive relief based on an already existing court decision (which, in turn, is based on national law) is not contrary to EU law. It did not create this relief nor did it argue for its extraterritorial effect (or otherwise). Attempts to extrapolate this approach to all filtering cases are misguided and are based on a fundamental misunderstanding of how the EU law operates. The public’s anger should be directed to the Commission and its muddled and incoherent approach to platforms and its inability to produce a coherent law for the future Digital Single Market.