Ms Eva Glawischnig-Piesczek (EGP), an Austrian MP, sought an injunction to have a defamatory post removed which was shared on a Facebook users personal page and then further comments were made by that individual. EGP first contacted Facebook but the post was not deleted so was forced to take action. The injunction was to in the hope that the court could order Facebook to ‘cease publication and/ or dissemination of the photographs.
It was granted at first instance based on Facebook not being allowed to hide behind any exemptions from secondary liability, but Facebook were only ordered to disable the content in Austria only. The big question that was left with the lawyers was whether they could now ask for an extension to the order applying worldwide. The court deliberated and considered whether they could apply the E-Commerce Directive.
Directive 2000/31/EC of the European Parliament. The E-Commerce Directive
Article 15 (1) of the Directive states that:
‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’
Essentially, it was first considered wither Facebook had any obligation to remove posts which are considered as re-posting or re writing identically text which would amount to illegal content outside of the platform. Also, whether Facebook and other hosts have a responsibility to monitor and ultimately make decision by playing ‘sheriff’. This is closely linked to whether a court does have the jurisdiction to order Facebook to remove the ‘illegal content’ outside of the territory in question.
It is not the first time that the issue of an order wanting to be enforced outside of one jurisdiction. As previously reported as a case of comparison for potential blockchain cross border issue with data protection etc, the ‘google Spain case found that there was a connection within the EU due to an office in one of the member states that meant the court could extend the expectations to within the EU as well as the US. This type of application is usually how the courts work out any connecting factor that results in an extended order worldwide, but it is difficult to find. Let’s see what the Advocate General had to say on the above because this decision could change how platforms are to deal with defamatory statements including how to determine whether what is said is truly intrusive, or whether it is merely lawful speech.
Advocate General Szpunar Opinion in Brief
The headline from the opinion is that the AG considers that a host provider such as Facebook is not fully protected by the Directive and will in the future be expected to comply with an Order of the Court to ‘find and identity users who are found to have copied, shared or re-wrote information identical to the original, illegally uploaded works. It is interesting to note that the power that hosts such as Facebook has is still not enough to overall the courts. The other point to take away from this judgment is that the users who are a secondary infringer or are behaving defamatory now have to answer to the host provider of the site as well as any claims that a claimant files and the host provider will now be expected to source and shut down those who are seen to behave in this manner without claiming protection rights.
If you have any issues with an infringer of your work or defamatory remarks being made against you that you worry can never be removed from an online platform, please do not hesitate to get in touch for a no obligation chat and we will see how we can help.