by Joe O'Malley August-14-2019 in Litigation & Dispute Resolution, Media Law
The obligation on social media platforms to remove defamatory content will be significantly broadened if the Court of Justice of the European Union (“CJEU”) adopts the Opinion of Advocate General Szpunar in Eva Glawischnig-Piesczek v Facebook Ireland Limited Case C-18/18.
Background
The e-Commerce Directive 2000/31/EC (the “Directive”) provides that information service providers, such as social media platforms, are not liable for the defamatory information posted by their users, the so-called “mere conduit defence”. The reasoning goes that unlike newspapers, magazines or television networks, information service providers do not have control over the information their users post – they are “mere conduits” for the information. Article 15 of the Directive also prohibits member states from imposing a general obligation on information service providers to monitor the content their users post, transmit, or store on their platforms.
If you wish to have defamatory or illegal content removed from a social media platform you must notify the relevant social media company and request the post be removed. Alternatively, you can seek an injunction from the High Court ordering the defamatory or illegal content be removed.
Eva Glawischnig-Piesczek, (a member of the Austrian National Council and chair of the parliamentary party die Grünen ‘the Greens’) applied to the Austrian Courts for an order directing Facebook Ireland Limited to remove a defamatory comment and any equivalent information. The Austrian Supreme Court asked the CJEU to consider the following questions in the context of Article 15 of the Directive:
- Can an information service provider, such as Facebook, be ordered to seek and remove information equivalent to the defamatory or illegal content published or disseminated by its platform?
- Does an obligation to remove defamatory or illegal information apply worldwide?
- Can an order requiring an information service provider to remove defamatory content create an ongoing obligation to remove equivalent information once they are made aware of it?
Advocate General Spuzer’s Opinion
Advocate General Spuzer’s opinion has recommended, in the context of seeking injunctive relief, that:
- An information service provider can be ordered to search all content disseminated by all users of its platform to identify information identical to the content which has been characterised as defamatory or illegal. It was Advocate General Spuzer’s view that such an approach does not require sophisticated techniques and would not create a burden on the information service provider. Secondly, considering how information can now be reproduced, such an approach is necessary to ensure the effective protection of privacy and personality rights.
- An information service provider cannot be ordered to search all content disseminated by its users to identify information equivalent to the defamatory or illegal information. Advocate General Spuzer opined that to impose such an obligation on a service provider would be costly and may lead to censorship or restrict freedom of expression. However an information service provider can be ordered to search information disseminated by a specific user to identify information equivalent to the defamatory or illegal information.
- The Directive does not regulate the territorial scope of an obligation to remove information therefore there is no restriction, under the Directive, from ordering the worldwide removal of information identical or equivalent to the defamatory or illegal content. In the view of Advocate General Spuzer the territorial scope of an injunctive order for the removal of information should be analysed by reference to public and private international law.
- An information service provider can be ordered to remove information equivalent to the content which has been characterised as illegal or defamatory, where they are made aware of such information by the person concerned, third party or another source. It was Advocate General Spuzer’s view that such an obligation does not require the general monitoring of information stored or transmitted by the information service provider.
Conclusion
The CJEU decision is expected in the coming months. While Advocate General Spuzer’s opinion is not binding, it is likely to be influential and is consistent with a general shift towards greater monitoring and regulatory obligations being placed on social media platforms across Europe.
Social media platforms need to consider how they respond to requests for the removal of defamatory content or other illegal information hosted by their platforms. The days of relying squarely on the “mere conduit defence” may be numbered. If the scope of Court Orders is broadened, in line with Advocate General Spuzer’s opinion, injunctive relief against information service providers may be a more attractive option for an individual seeking the removal of content or information from a social media platform.
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About the Author
Joe O'Malley
Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.