Making Host-ory: CJEU rules that when a host is ordered to remove infringing content this includes identical and equivalent material

The CJEU has ruled in Eva Glawischnig-Piesczek v Facebook (C-18/18) that when a host is ordered to remove illegal content, it must take down both identical and equivalent material. A Press Release was also published by the CJEU.

The referral made by the Austrian Supreme Court provides further clarification on the scope of Articles 14 15 and 18 of the Directive 2000/31 (the E-Commerce Directive) and confirms that takedown injunctions can have worldwide effect.

Legal basis

Article 14 of the E-Commerce Directive states that host providers are not liable for the content they host, as long as they do not have actual knowledge of infringing or illegal content or, if they are aware, they act expeditiously in taking it down.

Article 15, however, prohibits the imposition on host providers of a 'general obligation' to monitor their content.

Article 18 ensures that courts in Member States are able to quickly impose measures which are designed to terminate the hosting of any infringing or illegal content.

History of the dispute

In 2016, a Facebook user shared a story about Austrian politician, Eva Glawischnig-Piesczek and posted a disparaging comment, which would later be found to be defamatory. Accompanying the post was a thumbnail image of Glawischnig-Piesczek.

Glawischnig-Piesczek asked Facebook to remove the comment. When it did not, Glawischnig-Piesczek successfully applied for an injunction at the Austrian Commercial Court.

The Commercial Court (on the legal basis that in Austria you may not disseminate the image of a person if it harms their legitimate interest) ordered Facebook to stop publishing and/or disseminating photographs of Glawischnig-Piesczek if accompanied by text identical to or having equivalent meaning to the original comment.

Facebook appealed this decision to the High Regional Court, which ordered Facebook only to cease the dissemination of equivalent content where it had been brought to their attention.

Facebook argued that an obligation to remove identical and equivalent content amounted to a general obligation to monitor under Article 15 of the E-Commerce Directive and as such was prohibited.

Both parties appealed to the Austrian Supreme Court, which then made a referral to the CJEU.

CJEU ruling

The Court ruled that Article 15 of the E-Commerce Directive did not prohibit a court of a Member State from ordering a host provider to remove identical or equivalent content, which had previously been found to be unlawful.

The Court gave some guidance as to what constituted 'equivalent' content, stating that it is content which remains 'essentially unchanged' and 'diverges very little' from the original unlawful content. The Court indicated that content is 'equivalent' as long as the hosting provider does not have to 'carry out an independent assessment of that content' and is able to use 'automated search tools' to identify the relevant content.

The Court also ruled that as Article 18 of the E-commerce Directive does not make any provision for limitations to the measures which the courts of Member States are able to impose on hosting providers, an injunction (or other measures imposed) could have worldwide effect, as long as they are consistent with relevant international laws. This will ultimately be for the relevant national courts to determine.

Comment

This decision by the CJEU represents another move towards holding internet giants more responsible for the content they host. (We have published widely on the new Copyright Directive (to be implemented by 7 June 2021) and in particular, on Article 17 which will make online platforms primarily liable for the copyright-protected content they host. There have also been a number of recent references to the CJEU on the issue of intermediary liability – joined cases of You Tube and Elsevier and the most recent referral in July - Puls4, all with a similar theme).

It is important to note that the CJEU has attempted to strike a balance between the different interests at stake, as envisaged by the E-Commerce Directive. Any injunction granted would have to take into account maintaining the protection of the reputation and honour of a specific person (in a case such as this) whilst at the same time ensuring that any obligation imposed on a host provider was not too excessive.

The term 'equivalent' is likely to be interpreted narrowly. The CJEU has stipulated that in order to assess whether content is 'equivalent' to previous illegal content, it must not require an independent assessment. Any injunction, however, must be able to extend to content, which, 'whilst essentially conveying the same message, is worded slightly differently because of the words used or their combination'.  By limiting the test for equivalence on what hosting providers are able to find using automated search tools, we may find that companies such as Facebook inadvertently expand the definition of equivalence by developing more intelligent search technologies. This also raises questions as to whether there is a higher standard of liability for intermediaries with more advanced search tools available to them.

Whilst many commentators have welcomed the ruling, others have been left somewhat disheartened, fearing that it is a further form of censorship of the internet and curbs the principle of freedom of expression. It will be up to Member States to ensure that 'equivalent' content is not interpreted too broadly and that any injunctions granted are measured and proportionate so that the fundamental rules and principles relating to freedom of expression are not affected.

As the ruling also highlights, Article 18 allows Members States particularly broad discretion in relation to introducing measures to stop infringing activities and prevent future infringements. So, whilst the case centres around defamation, it could also have wider ramifications in relation to copyright-protected content and other IP rights in general. We will be watching closely to see whether this ruling gives rise to any IP-related claims.

With special thanks to Will Stanford, trainee solicitor, for his contribution to this blog.