Courts can order platforms, websites and apps to take down identical and equivalent illegal content

What's the issue?

Under the e-Commerce Directive (ECD), information society service providers (ISPs), like Facebook in this case, which host content posted by their users are protected from liability for damages for such content unless they are put on notice of it (the so-called 'hosting exemption'). Once on notice (which is a high threshold), they must remove the content "expeditiously" in order to remain protected. In addition, Member States cannot impose a general obligation on ISPs to monitor information they transmit or store.

For those seeking to have defamatory content removed from an ISP, dislodging the hosting exemption can be difficult because ISPs often refuse to accept they are on notice, and even when they are, they are still allowed more time to remove the content. However, individuals can instead seek an injunction to remove content, which the hosting exemption does not prevent.

In this case, defamatory content was posted on Facebook about the claimant (an Austrian politician), which was accessible worldwide. When Facebook failed to remove the content, she sought an injunction against Facebook Ireland in the Austrian courts, but one which not only required removal of the defamatory content complained of (which the court found to be defamatory), but any identical or equivalent content. Facebook disabled access to the initial defamatory content in Austria, but tried to argue that the rest of the injunction was too wide and conflicted with the general prohibition on monitoring. The claimant argued that such an order was necessary given content can be replaced as quickly as it is taken down, or can be tweaked to make it slightly different to avoid removal. The issue about the scope of the injunction, worldwide scope and whether it conflicted with the ECD was referred to the CJEU for a preliminary ruling.

What's the development?

The CJEU held that the general prohibition on monitoring under Article 15 of the ECD does not preclude a Member State court from ordering an ISP to remove identical information or equivalent, provided that:

• the monitoring and search for the information concerned by an injunction are limited to information conveying a message, the content of which remains essentially unchanged from the original information, and
• contains the elements specified in the injunction, and
• provided that the differences to both do not require an ISP to carry out an independent assessment of it

Nor does Article 15 preclude a Member State court from granting an order worldwide within the framework of the relevant international law.

Therefore, Facebook could be ordered by the Austrian courts to remove or block access to unlawful information which is identical or equivalent to content which has already been found to be so, and this order could apply worldwide where relevant international laws or treaties allowed it.

What does this mean for you?

This ruling has ramifications for all social media platforms and similar apps and websites.

It should also make it somewhat easier for successful defamation claimants to have content taken down without requiring them to make new court applications with respect to identical or equivalent content, effectively widening the potential scope of take down orders.

The worldwide element of the ruling is not necessarily as significant as it might first appear given that it is only relevant where there is an appropriate international legal framework, but this does potentially shift the onus of finding illegal content onto the social media platforms and websites where there is a relevant court order, rather than requiring the affected individual to put the hosting provider on notice in subsequent instances of the illegal content being published or stored.

Facebook has expressed concerns that the ruling will impact freedom of expression, but had it simply removed the content complained of as requested in correspondence, the claimant in this case would probably not have applied for an injunction requiring it to do so. It is also difficult to see how removing identical or equivalently defamatory content to the original defamatory content (ie republications of the same defamatory statement) cuts across freedom of expression given such content would presumably convey the same or a similar defamatory meaning. In the English Courts, injunctions are often granted to prevent the further publication of defamatory allegations or any allegations with a similar meaning.