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CJEU, Glawischnig-Piesczek v Facebook, C-18/18, pending

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Deciding bodies and decisions
CJEU, Glawischnig-Piesczek v Facebook, C-18/18, pending
Area of lawBack to top ▲
Freedom of expression - hate speech
Subject matterBack to top ▲

What is the role of Internet intermediary in countering hate speech?

Can an Internet intermediary be requested to monitor hate speech comments worldwide?

Summary Facts Of The CaseBack to top ▲
In 2016 the former leader of the Austrian Green party, Eva Glawischnig-Piesczek was the subject of a set of posts published on Facebook on by a fake account named ‘Michaela Jaskova. The posts included rude comments, in German, about the politician along with her image.
Ms Glawischnig-Piesczek requested Facebook to delete the image and the comments, but it failed to do so. Thus, Ms Glawischnig-Piesczek filed a lawsuit before the Wien first instance court, which eventually resulted in an injunction against Facebook, which obliged the social network not only to delete the image and the specific comments (making them inaccessible worldwide), but also to delete any future uploads of the image if it was accompanied by comments that were identical or similar in meaning to the original comments.
Facebook complied with the injunction only across the Austrian country, blocking access to the original image and comments, then appealed the decision. The Appeal court upheld the first instance decision only partially, requiring the deletion of the image only in case of comments that were identical to the original wording or similar in meaning upon notice by the plaintiff or third parties.
Both parties appealed the court of appeal’s decision, which brought the case to before the Oberste Gerichtshof. Addressing the case, the Austrian supreme court affirms that Facebook is considered as an abettor to the unlawful comments, thus it may be required to take steps so as to repeat the publication of identical or similar wording. However, in this case the injunction regarding such a pro-active role for Facebook could be indirectly impose a monitoring role, which is in conflict not only with art 15 e-commerce Directive, but also with the previous jurisprudence of the CJEU in Netlog v Sabam and Scarlet v Sabam cases. Therefore, the Supreme court decided to stay the proceedings and present a preliminary reference to the CJEU, including the following questions:
Does Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) preclude the national court, to make an order requiring a hosting provider who has failed to expeditiously remove illegal information not only to remove the specific information but also other information that is identical in wording?
With regards to the first question, does Article 15(1) precludes such an order that requires the hosting provider to remove such information (or block access to it) worldwide or only in the relevant member state?
Does Article 15(1) precludes such an order that is limited to removing or blocking access to the illegal information only from the specific user who posted the content and whether such an order would be applicable worldwide or only in the relevant member state?
If the previous questions are answered in the negative: does the same answer apply to information that is not identical in wording, but similar in meaning?
Does the same answer apply to information that is not identical in wording, but similar in meaning, once the host provider has actual knowledge of the information?

The case is currently pending before the CJEU.

Notes on judicial interactions dimensionBack to top ▲
Vertical dialogue – preliminary reference

The Austrian Supreme court points to highly debated issue which was emerging not only in the European but also at worldwide level. As a matter of fact, in the same period also the Supreme Court of Canada granted an interlocutory injunction against Google in the form of a global de-indexing order.  

Horizontal dialogue – comparative reasoning

It is worth noting that also a French court addressed the issue of injunction with worldwide scope with a reference to the de-listing from Google search results. The Paris first instance court ordered such an injunction in 2014 as an application to the right to be forgotten of a French lawyer. In the case, the judge hearing the application for interim relief held that the request for de-listing was well-founded, and imposed to Google France the removal of the defamatory links. This injunction did not limit to the links of Google.fr, on the ground that the defendant did not establish the impossibility of connect from the French territory using the other endings of the search engine.

Sources - EU and national lawBack to top ▲
Directive 2000/31