In March 2018, Oberster Gerichtshof of Austria submitted a request for a preliminary ruling based on a case generated when a disparaging comment about an Austrian politician was published on Facebook. When Facebook refused to remove the comment, a request was submitted to Austrian court, requesting that an injunction be issued essentially demanding that Facebook deletes the content. Advocate General Szpunar’s Opinion in the case was published on June 4.
The question originally referred to CJEU was if Article 15 of the E-Commerce Directive precludes an injunction requesting the removal of allegedly illegal content, and whether such an injunction can have a worldwide effect. In other words, the question is not only if Article 15 (prohibition of general monitoring) precludes injunctions such as the one at hand but also, if it does not, should such injunctions be issued with Member State-only or worldwide effect.
While it may, at first sight, appear odd that the referring court is asking about Article 15 (monitoring) as opposed to Article 14 (hosting), the logic behind the request, however, should not be too difficult to follow. Article 14 only provides immunity to bona fide intermediaries, i.e. those who are not aware of the infringing content and who expeditiously remove. On the other hand, those who are made aware of it, and subsequently refused to remove, lose the liability insulation. Since Facebook explicitly refused the request to remove, the question revolves around the legality of an injunction (assuming the post itself is, indeed, illegal).
Since the injunction would impose an obligation to monitor the content (in order to identify what needs to removed), the framing of the question makes sense. On the other hand, the AG does point out that an injunction imposing the general obligation to monitor content of a certain type (in other to identify the offending content), would have the effect of removing the protection provided by Article 14. In other words, general obligation to monitor is illegal under Article 15. For the sake of clarity, nothing in AG Szpunar’s Opinion suggests that general obligation to monitor is either desirable or, indeed, lawful.
Moving on to specific obligation to monitor, the AG points out that specific monitoring is explicitly allowed in Recital 47 of the E-Commerce Directive. Articles 14(3) and 18, furthermore, explicitly recognize that prevention is an important aim in the Directive and no prevention would be possible without some degree of monitoring. Crucially,
in order not to result in the imposition of a general obligation, a monitoring obligation must, as seems to follow from the judgment in L’Oréal and Others, satisfy additional requirements, namely it must concern infringements of the same nature by the same recipient of the same rights.
It is not allowed to issue an injunction requesting that the provider monitor for infringements that are like the one at hand, are inspired by it or, indeed, are perpetrated by different users. All of this would be general monitoring. The AG’s reading of the Directive and case-law, put simply, is that monitoring targeting a specific infringement is allowed, whereas general monitoring is not. This position is firmly embedded in the E-Commerce Directive.
The referring court, importantly, also asked if information identical to that being requested should also be removed. In AG’s words, a social network platform can be ordered 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.” The answer to this is equally clear. When doing so, the social network can only be required to monitor the information disseminated by the user who disseminated the original info.
In respect of the territorial scope of the obligation, the Advocate General makes two crucial observations. The first is that the obligation in question (defamation) is not based on EU law. Second, Article 15 of the E-Commerce Directive does not regulate the territorial effect of injunctions. In case of the first, had the obligation been based on EU law, that law would determine its own territorial scope – extraterritorial or otherwise. In case of the second, had Article 15, or indeed the E-Commerce Directive, something to say about its scope of application, that could be used to determine the territorial scope of the injunctions. Further to that, although Brussels I (Recast) regulation regulates jurisdiction in cases of defamation, and allows preliminary measures, it does not say anything about the territorial scope of these measures. Put simply, since the EU law says nothing about the territorial scope of the injunction, it remains for the national (Austrian) law to resolve this issue.
As it stands, it is difficult to argue against Advocate General’s reasoning. A different conclusion would mean that a national court’s order to remove the illegal content would simply be circumvented by using the Article 15 argument and claiming that any action to identify the content would amount to “monitoring”. That could not have been the intention of the drafters. The monitoring that Facebook is obliged to engage in is limited to the specific post and equivalent comments from the same user. This is still very different from a general obligation to monitor which would require that all content be monitored to identify various real and potential infringements of a particular kind.
Article 15 prohibits general monitoring in respect of information society services covered in Articles 12-14 of the Directive. Where these articles do not apply, neither does the obligation to general monitoring. As Martin Husovec observes, however,1 the CJEU had the prohibition of general monitoring transplanted into copyright enforcement in the Scarlet Extended judgement. But, while this may indicate that CJEU believes general monitoring to be invasive, it says nothing about specific measures. The case law is remarkably clear and consistent in terms of specific monitoring. The Scarlet Extended case is precise in what constitutes illegal general monitoring in relation to filtering but says nothing of specific measures. The only outstanding question can be whether a particular form of action demanded in a court order amounts to general or specific monitoring. On the other hand, that specific measures of monitoring are allowed has been clearly confirmed in the UPC case. Finally, as AG Szpunar himself argued in McFadden case, and as he repeats in this Opinion, in order for the specific monitoring to be legal, it has to be limited in terms of subject and duration.
If there is something that needs clarification then it is the nature of the “similar” measures and the effort that must be made to make sure that specific monitoring is, indeed, limited in time and scope. In terms of the former, the present Opinion suggest that “equivalent” comments from the “same user” can be covered but nothing else. This is somewhat in line with the Court’s cases law to date. In terms of the latter, Member States already seem to take different approaches to injunctions with some (notably Germany) being markedly broader in their attempts to impose monitoring obligations. While one could possibly wish that clearer guidelines come form the Court, the Facebook judgement introduces nothing new in terms of the existing law. It is true that distinguishing between general and specific monitoring may be a difficult issue to resolve in specific cases. It is also possible to take issue with the EU policy on monitoring and to argue in favor or against the general/specific method. But, until that provision is modified, the Court should follow the AG’s opinion.
- Martin Husovec, Injunctions Against Intermediaries in the European Union (CUP 2017), p. 118 ↩