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EU Courts can order Facebook to delete illegal content globally, rules European Court of Justice
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EU Courts can order Facebook to delete illegal content globally, rules European Court of Justice

Aditya AK

In a verdict that may have global implications, the European Court of Justice has ruled that courts in member states of the European Union (EU) can force Facebook to take down content and restrict global access to the same.

The judgment was passed in a case involving Austrian politician Eva Glawischnig-Piesczek, who had asked Facebook Ireland to take down content shared on the platform that was ruled to be defamatory.

The case dates back to 2016, when a Facebook user shared a news article on Glawischnig-Piesczek, and had made some defamatory comments on the post. When Facebook refused to take down the post, the politician approached the courts in Austria. 

In December 2016, the Commercial Court in Vienna directed Facebook Ireland to cease and desist from publishing and/or disseminating photographs showing Glawischnig-Piesczek, if the accompanying text in the post contained the assertions made in the defamatory comment, either verbatim or having similar meaning.

Facebook Ireland then disabled access to the content initially published in Austria, and approached the higher court in appeal. The Higher Regional Court in Austria upheld the decision. However, it also held that Facebook would have to take down only such equivalent content that was brought to its notice.

The matter found its way to Austria’s Supreme Court, which stayed the proceedings and referred to the European Court of Justice questions regarding the interpretation of Article 15(1) of the European Union Electronic Commerce Directive of 2000.

Article 15(1) urges member states to prohibit any kind of interception or surveillance of such communications by others than the senders and receivers, except when legally authorised.

The main question before the European Court of Justice was whether Article 15(1) must be interpreted to mean that it precludes a court of a member state from:

  • ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be illegal, or to block access to that information, irrespective of who requested the storage of that information;
  • ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information, and
  • extending the effects of that injunction worldwide.

The Court held that since the content was deemed to be illegal by the courts in Austria,

“…to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information.”

However, the Court made it clear that a court of a member state cannot pass an order requiring a provider like Facebook to generally monitor information that it stores or disseminates.

As regards what constitutes information “equivalent” to the infringing content, the Court held,

“…it is important that the equivalent information…contains specific elements which are properly identified in the injunction, such as the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal. Differences in the wording of that equivalent content, compared with the content which was declared to be illegal, must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.”

Coming to the question of whether such a court order will have worldwide implications, the Court held that Article 18(1) does not provide for territorial limits.

“However, it is apparent from recitals 58 and 60 of that directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level.”

Thus, it was held that a court order urging Facebook to take down content would indeed have global implications, as long as it is within the framework of the relevant international law.

The decision comes a week after the Court had upheld the “right to be forgotten”, which allows Europeans to demand that Google remove links to sensitive personal data from search results.

In India, the Supreme Court is currently hearing petitions calling for the regulation of content on social media. On the last date of hearing in that case, the Apex Court sought an affidavit from the Centre laying down the steps taken towards framing of guidelines on the issue.

Read the European Court of Justice’s judgment:

European-Court-of-Justice-Facebook-order.pdf
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