The Court of Justice of the European Union (ECJ) has ruled, upon submission by the Austrian Supreme Court (Oberster Gerichtshof, OGH), with the decision of 3 October 2019 (Case C-18/18), that hosting providers, in this case Facebook, may be required by a court to seek and erase content which is identical or, under certain circumstances, equivalent to information previously found to be unlawful. In terms of the relevant international law, this obligation could also be extended to content worldwide.
Eva Glawischnig-Piesczek, former leader of Austria’s Green party, had brought an action against Facebook Ireland as a result of a hate post, in which she was, amongst other things, called a “miese Volksverräterin” (wretched traitor to her people). She sought a temporary injunction requiring Facebook to delete the said article and identical and/or equivalent comments. The case came before the Austrian Supreme Court, which found that the article insulted and defamed Glawischnig-Piesczek. The Austrian Supreme Court submitted the question of whether Facebook can also be required to seek and erase unlawful identical or similar comments to the Court of Justice of the European Union with regard to its compatibility with the Electronic Commerce Directive (Directive 2000/31/EC).
Essentially the ECJ assumes, in accordance with the provisions of the Directive, that hosting providers cannot be legally obligated to monitor the information they generally store or to actively seek facts or circumstances indicating illegal activity. This is because, a host is not liable for the information it stores if it is not aware of the illegal nature of that information or if immediate action is taken once it is made aware of its illegality.
The situation is different for information previously found to be illegal. In this case, national courts can order hosting providers to remove content identical to information found to be illegal. In the opinion of the ECJ, national courts can, under certain circumstances, also impose an obligation to erase content that is equivalent to information previously declared illegal. Here, the obligation to investigate equivalent posts should be restricted to the extent that the information concerned conveys a message where the content of which remains essentially unchanged compared with the information declared unlawful. The differences between the equivalent content and the original illegal content must not be such as to require an independent assessment of that content. This is designed to ensure that hosting providers have recourse to automated techniques and tools when looking for content.
It is up to Member States to take due account of rules applicable at international level, which is why the legal obligation placed on the hosting provider may also cover implementation with regard to investigating and erasing information on a global scale.
In its judgment, the ECJ has struck a proportionate balance between the interests of the individual whose personal rights have been violated and the commercial interests of the hosting provider. Hosting providers will still not be under any legal obligation to actively seek and erase illegal content, but the Electronic Commerce Directive does not preclude the imposition of such judicial obligations should information have been declared illegal. This is because the obligation to investigate and erase is restricted to identical and possibly equivalent information, whereby a search using automated techniques is possible and accordingly appears appropriate for hosting providers. The ECJ has confirmed the extension of the obligation to global content while taking into account international law.