The CJEU specifies the scope of withdrawal orders addressed to hosting services providers

Friday, 18 of October of 2019

On 3 October 2019, the CJEU delivered a Judgment in Case C-18/18 which answered a question referred by the Austrian Supreme Court on the scope of withdrawal orders addressed to information society service providers.

The underlying main dispute had been brought in Austria by a former member of the "Green" political party against Facebook, in the light of offensive comments made by a user of that social network following a press release about that parliament member (which apparently advocated the introduction of a minimum income for refugees).

Since the Austrian courts ruled that the comments denounced were unlawful, the controversy shifted to elucidating the scope of the withdrawal court ruling addressed to Facebook. In essence, the Supreme Court requested guidance on the legality of imposing a withdrawal order that would include not only the comments of the initially denounced user, but also the comments subsequently made by other users on the press release already referred to. Finally, it was questioned whether it was lawful to impose a cease order with worldwide geographical extension.

The CJEU ruled that it is compatible with EU law to impose withdrawal orders by which a hosting service provider must cancel content identical and/or similar to that declared illegal by a court or administrative authority.

In order to substantiate its response, the CJEU has resorted to both the articles and the preamble of the Directive 2000/31 on electronic commerce. In this respect, Article 18(1) of the e-commerce Directive is invoked, which provides that Member States shall ensure that judicial remedies are available to enable measures to be taken to put an end to any alleged infringement and to prevent further damage to the interests concerned. Reference is also made to recital 47 of the said Directive, from which it follows that the prohibition of general supervision laid down in Article 15(1) does not refer to supervisory obligations 'in specific cases', such as the case of specific information analysed by a court.

As regards the similarity assessment between the contested contents, the ECJ offers some non-exhaustive guidelines, such as the name of the victim of the infringement or the circumstances in which the infringement has been established, to be assessed by the hosting service provider, without in any case being obliged to make an independent assessment of the allegedly similar content, being able to use automated search techniques and tools.

Finally, the CJEU validates the worldwide scope of withdrawal orders. But it does so with a relevant nuance; it is up to the member states to ensure that such measures respect the rules of international law.