In case C‑18/18, a Facebook user had shared a news article on his personal page together with a disparaging comment about the Austrian politician mentioned in the article.
The politician asked Facebook to remove the defamatory comment. As Facebook did not comply, the politician started proceedings, which resulted in the Austrian Supreme Court referring questions to the European Court of Justice (“CJEU”) for a preliminary ruling.
In his Opinion of 4 June 2019, Advocate General Szpunar starts by reminding that under Directive 2000/31/EC on electronic commerce (“the e-Commerce Directive”), a host provider (such as Facebook) whose conduct is limited to that of an intermediary service provider, i.e. a service provider whose conduct is purely technical, automatic and passive, enjoys relative immunity from liability for the information which it stores. This immunity is only granted on the condition that (i) the service provider was not aware of the illegal nature of the information stored and that (ii) once made aware of that illegality, it acts expeditiously to remove the information or to disable access to it. Furthermore, this immunity does not prevent a court or administrative authority from requiring the host provider to terminate or prevent an infringement. An intermediary service provider may indeed be the addressee of injunctions, even though that service provider is not itself liable for the information stored on its servers.
Secondly, the e-Commerce Directive prohibits Member States from imposing a general obligation on host providers to monitor the information stored or to actively seek facts or circumstances indicating illegal activity. However, the prohibition on imposing general obligations does not concern monitoring obligations in a specific case. A host provider may be ordered to prevent an infringement, which implies a form of monitoring in the future, without that monitoring becoming a general monitoring obligation. Consequently, a host provider may be ordered, in the context of an injunction, to remove specific illegal information which has not yet been disseminated at the time that the injunction is adopted. The dissemination of that information does not have to be brought, additionally and separately from the original removal request, to its knowledge. Active monitoring targeted at the specific case of an infringement is therefore not irreconcilable with the e-Commerce Directive.
In Advocate General Szpunar’s opinion, the above implies that a host provider that operates a social network platform may be ordered, in the context of an injunction, to seek and identify all information identical to the information that was characterised as illegal by the national court, even if that information is disseminated by other users. Furthermore, the Advocate General states that such host provider may be ordered to identify information equivalent to the information that has been characterised as illegal. However, in the latter case, the order should be limited to information disseminated by the same user. The Advocate General points out that identifying equivalent information originating from other users would require a general monitoring obligation, leading the host provider to lose its mere technical, automatic and passive nature. Also, such an obligation would not ensure a fair balance between the protection of private life and personality rights, the protection of freedom to conduct a business and the protection of freedom of expression and information.
The Advocate General’s Opinion is not binding on the CJEU, which will rule on the case at a later date.
For further information on this case, and/or for general legal advice relating to ISP liability, please contact Karel Janssens.