Facebook should remove identical content to those declared illegal if they come from the same user

Monday, 17 of June of 2019

On 5 June 2019, Advocate General Spuznar delivered his Opinion in Case C-18/18 (Eva Glawischnig-Piesczek v Facebook Ireland Limited), which deals with the circumstances in which a service provider operating a social network platform, such as Facebook, may be required to withdraw certain content posted online by its users. In particular, the issues discussed in the proceedings, from which the Advocate General's Opinion is based, lie in the personal, material and territorial scope of the obligations which may be imposed on host provider, without leading to the imposition of a general obligation of supervision, prohibited in Directive 2000/31 on electronic commerce.

In that regard, the Advocate General's Opinion arises from an application for injunctive measures brought before the Austrian courts by a politician against Facebook - on the basis of the rules of national law relating to the infringement of privacy and personality rights - with the aim that Facebook should be ordered to make certain pictures of the applicant disappear worldwide, together with certain defamatory comments, as well as any publication of 'similar content'.

In the course of the proceedings at national level, the courts have raised doubts as to whether injunctive measures can be extended (i) worldwide and (ii) to declarations identical or similar in content to those declared unlawful of which Facebook is not aware, which is why the Austrian Supreme Court referred a preliminary ruling to the ECJ for the European body to provide the necessary tools for the correct interpretation of EU law in these circumstances, and in particular of Directive 2000/31.

In this context, Advocate General Szpunar proposes that the ECJ should rule that the Directive does not preclude a national court from ordering a platform such as Facebook to search for and identify, among all the information shared by users of that platform, information identical to that declared unlawful by the court in question.

According to Szpunar, this entails the guarantee of a fair balance between the fundamental rights held by any justiciable person, such as the protection of privacy and the rights of personality, freedom of enterprise and freedom of expression and information, without requiring the service provider to deploy sophisticated technical means which could, in the end, place an extraordinary burden on its operation which is not in accordance with the directive.

On the other hand, according to Szpunar, national courts can also require service providers, such as Facebook, to search and identify similar information to that which they have declared illegal, although they will only be able to do so with respect to information shared by the same user who published such information. In these circumstances, the injunction to remove such similar information must ensure that its effects are clear, precise and predictable.

As regards the concerns raised about the territorial scope of the withdrawal obligation, the Advocate General considers that, in the absence of EU law on this issue, the Directive does not preclude an obligation on a provider of data hosting services to withdraw such data worldwide.

Finally, the Advocate General finds that the Directive does not preclude an obligation on a service provider to withdraw similar information to that declared unlawful, where it has been warned of this by the person concerned, by a third party or by another source, since in such a case the obligation to withdraw does not involve general supervision of the information being stored.

As it is well known, the conclusions delivered by the EU Advocates General are not binding on the Court, so we are waiting to see what the position of the Court of Justice of the European Union will be on this issue.