Notice and stay-down orders and impact on online platforms

By Graham Smith

10-2019

Last week, the CJEU (Court of Justice of the European Union) handed down a landmark ruling on the much debated question of notice and stay-down: whether a court can require a hosting intermediary not only to remove identified copies of unlawful material, but to detect and remove the same or similar material elsewhere on its platform.

In Case C-18/18 - Eva Glawischnig-Piesczek v Facebook Ireland Limited it held the EU eCommerce Directive (Directive 2000/31/EC) does not prevent a host provider from being ordered to remove identical and, in certain circumstances, equivalent defamatory comments previously declared to be illegal.

Article 15(1) of the eCommerce Directive prohibits imposition of a general monitoring obligation on a hosting intermediary requiring it to seek out illegal information or activities. Hitherto it has been unclear whether a stay-down order would contravene Art 15(1).

The CJEU was also asked to consider whether the eCommerce Directive permitted such an order to require worldwide removal. It held that since Article 15(1) does not address territoriality of injunctions, and since defamation is not an EU harmonised right, that issue is outside the scope of EU law and is a matter for each Member State's national law.

Background facts

The case originates from a disparaging post made on an online social networking site (Facebook) when a user shared and commented on an article from an Austrian online news magazine that contained a picture of an Austrian politician, Eva Glawischnig-Piesczek. Eva Glawischnig-Piesczek requested that the post be removed.

The commercial court in Vienna supported the application and directed Facebook to remove the post and identical posts as well as remove any equivalent posts that would harm Eva Glawischnig-Piesczek’s rights. Facebook disabled access to the content initially published, but only in Austria. The commercial court's judgment was subject to further appeals which resulted in the Austrian Supreme Court referring the matter to the CJEU to clarify the scope of application of Article 15(1) of the eCommerice Directive.

CJEU's Findings:

On the stay-down aspect the CJEU decided that Article 15(1) does not prevent a Member State court from ordering a host provider to:

  • Take down "identical" copies of posts found to be unlawful – specifically, to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information (in other words, not limited to posts from the account of the original perpetrator) ; and
  • Take down "equivalent" versions of posts found to be illegal – specifically, to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction.

The differences in the wording of the equivalent content, compared with the wording characterising the information previously declared to be unlawful, must not be such as to require the host provider to carry out an independent assessment of that content.

The implication of this appears to be that an order requiring removal of equivalent content must be limited to a process that does not involve the hosting provider in making an independent judgement on the legality of equivalent content. That, and the reference to elements specified in the injunction, may suggest that in practice an 'equivalent content' order must be limited to a blocklist of words, phrases or other content specified in the injunction itself, capable of being implemented by mechanical, automated detection.

As to Global application, having determined that in this case the question of territoriality was outside the scope of EU law, the CJEU observed that it is up to Member States to ensure that measures adopted by them which produce effects worldwide would take due account of rules of international law.

Back to Vienna - The Austrian Supreme Court now must make its final assessment and decide the scope of the final order.

Concluding remarks

The greatest significance of the ruling is in its interpretation of the extent to which Article 15(1) may permit 'stay-down' orders. The requirement that hosting providers cannot be required to carry out an independent assessment of the legality of 'equivalent content' appears to place the burden squarely on to the court to determine what words can be regarded as equivalent, particularly for defamation when the same words used in different contexts may not carry the same defamatory meaning.

National courts will need to provide clear guidance to ensure a proportionate and pragmatic enforcement approach, being mindful of the need to balance freedom of expression and an individual's rights to protection against defamation.

While much has been made of the CJEU's apparent green light to global takedown orders, in reality this was no more than a decision about the dividing line between EU law and national law.