Sunday, 6 October 2019

Monitoring duties of online platform operators before the Court - case C-18/18 Glawischnig-Piesczek

Before the summer we briefly referred to the opinion of Advocate General Szpunar is case C-18/18 Glawischnig-Piesczek (see: Recent developments in online content moderation...). Last Thursday, the Court of Justice delivered the judgment in the case, clarifying the interpretation of Articles 15 and 18 of Directive 2000/31/EC on electronic commerce

Source: Pixabay
Background of the case

The case concerned a defamatory comment published on Facebook about a member of the Austrian Greens party, Ms Eva Glawischnig-Piesczek. The politician brought an action against the operator, requesting it to cease and desist from publishing photographs of her if the accompanying text contained allegations identical to those declared illegal or having equivalent content. In doing so she relied on Austrian provisions authorizing the courts to order host providers to terminate or prevent an infringement, in line with Articles 14(3) and 18 of E-Commerce Directive. The referring court, however, run into doubts whether an order to remove or disable access not only to a particular item of information, but also to equivalent items complied with Article 15(1) Directive 2000/31. Pursuant to this provision, Member States shall not impose a general obligation on providers of, among others, hosting services to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. The referring court also wondered about the territorial scope of such an order (for a similar discussion about the right to be forgotten, see: No one-size-fits-all approach to search engine de-referencing...)

Judgement of the Court

The Court gave a comparably broad reading to Article 18 Directive 2000/31 concerning judicial powers to adopt measures designed to terminate alleged infringements and prevent further impairment of the interests involved. According to the Court, Member States enjoy a broad discretion in relation to actions and procedures for taking necessary measures (para. 29). Such a margin of discretion is due to, among others, the rapidity and geographical extent of the damage arising in connection with information society services. Both of these factors were also clearly at play in the present case (para. 36).

Having said that, the Court decided to distinguish between injunctions concerning information whose content is identical to the one which was previously deemed illegal and injunctions concerning information with equivalent content (whose message remains "essentially unchanged and therefore diverges very little from the content which gave rise to the finding of illegality", para. 39).

In the former case, the Court confirmed broad powers of the national court and found that a host provider can be ordered to block access to or remove information with identical content, irrespective of who requested the storage of that information. The injunction granted for that purpose cannot be regarded as imposing on the host provider a general monitoring obligation, but rather concerns the monitoring ‘in a specific case’ (paras. 34, 37). 

When it comes to information with equivalent content the Court sought a balanced solution. It considered that injunctions should generally be able to extend to information, the content of which, "whilst essentially conveying the same message, is worded slightly differently, because of the words used or their combination, compared with the information whose content was declared to be illegal" (para. 41). The objective of an injunction, however, may not be pursued by imposing an excessive obligation on the host provider. To achieve this objective, the injunction must properly identify the specific elements of equivalent information, such as the name of the person concerned, the circumstances of the infringement and equivalent content to that which was declared to be illegal (para. 45). The monitoring of and search for information required of the host provider should be limited to information containing the elements specified in the injunction and be capable of being carried out by automated search tools and technologies (para. 46). Differences in the wording of equivalent content must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.

As regards territorial scope, the Court once again confirmed the broad reading of Article 18(1), Directive 2000/31, which "[did] not make provision ... for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt" (para. 49). Following the judgment, therefore, the E-Commerce Directive does not preclude the relevant injunctions from producing worldwide effects. Member States must, nevertheless, ensure that the measures which they adopt take due account of the rules applicable at international level.

Concluding thoughts

The judgment of the Court has multiple implications. Firstly, it strengthens the protection of parties affected by illegal content, but seeks to achieve this without undermining the validity of Article 15. As such, it does not provide for a straightforward solution to each and every future case and sets quite demanding requirements for both national courts and host providers. The former need to define what content they consider to be equivalent to that which had been deemed illegal. How courts will cope with such a task remains an open question. Host providers, in turn, must be ready to to take steps to monitor their platforms for identical or equivalent information, which - as the Court suggests - may require the use of technological tools. The same seems to be true for smaller platforms, even if arguments related to rapidity and geographical extent of the damage may not apply to them with equal force.

The judgment in C-18/18 Glawischnig-Piesczek is clearly relevant beyond the social media context. As noted by Christian Twigg-Flesner in a recent entry, the ruling can also be applied to other platforms like online marketplaces. Operators of such platforms could be required to take steps to monitor their content e.g. as regards the recurring presence of misleading information. The question remains whether the same could also become true for persons engaging in illegal actions.

Finally, attention should be drawn to the brief part of the judgment concerning territorial scope of online moderation. One cannot help noticing the similarity between this question and the one addressed in recent Google case. In Glawischnig-Piesczek, the Court did not provide for an equally balanced framework, but limited itself to stating that injunctions with worldwide effects are not precluded by Directive 2000/31. This remains in line with the opinion of Advocate General Szpunar - notably, the same AG whose advice was followed in the Google case. Both findings are, therefore, not necessarily inconsistent. In fact, the opinion in Glawischnig-Piesczek explicitly refers to the Google case. According to the AG, like with the right to be forgotten, "the legitimate public interest in having access to information will necessarily vary, depending on its geographic location, from one third State to another" (para. 99). Consequently, the limitation of extraterritorial effects of injunctions concerning harm to private life and personality rights, for example by way of geo-blocking, may remain "in the interest of international comity" (para. 100). Whether this is how the Court's reference to "the rules applicable at international level" is going to be read, nevertheless, is far from certain.

4 comments:

  1. fastest loan offer in europe
    What kind of loan do you need?
    We offer you a loan at good interest rate with of 3% with no collateral
    Business loan
    Mortgage loan
    Student loan
    Personal Loan
    Debt Consolidation
    Wedding Loan
    Bad Credit Loan

    Check out our official website for more info
    Web: http://us-nethullrobertloans.webs.com

    Text: (812) 221-3888
    WhatsApp: (812) 221-3888
    Email us at hullrobertloanagency@gmail.com OR hullrobert.loanagency@outlook.com

    ReplyDelete
  2. INSTEAD OF GETTING A LOAN,, I GOT SOMETHING NEW
    Get $5,500 USD every day, for six months!

    See how it works
    Do you know you can hack into any Credit cards machine with a hacked Credit cards??
    Make up your mind before applying, straight deal...

    Order for a blank Credit cards now and get millions within a week!: contact us
    via email address:: {Legitblankcardsonline@gmail.com}

    We have specially programmed Credits Cards that can be use to hack Credit cards Machines
    Nation Wide, the Credits Cards can be used to withdraw at any Credits Cards or swipe Machines, at
    Stores and POS Machines. We sell this cards to all our customers and interested
    buyers worldwide, the Credit Card has a daily withdrawal limit of $5,500 at any Credit cards Machines
    and up to $50,000 spending limit in stores depending on the kind of card
    you order for. Credits Cards Can also be used in any other cyber hack{Services}, we are here for you anytime any day.

    Here is our price lists for the Credits Cards:

    Cards that withdraw $5,500 per day costs $200 USD
    Cards that withdraw $10,000 per day costs $850 USD
    Cards that withdraw $35,000 per day costs $2,200 USD
    Cards that withdraw $50,000 per day costs $5,500 USD
    Cards that withdraw $100,000 per day costs $8,500 USD


    make up your mind before applying, straight deal!!!

    The price include shipping fees and charges, order now: contact us via
    email address:: {Legitblankcardsonline@gmail.com} Or
    Add us on Whatsapp [+2349052476836]

    ReplyDelete
  3. I got my already programmed and blanked ATM card to withdraw the maximum of $1,000 daily for a maximum of 20 days. I am so happy about this because i got mine last week and I have used it to get $20,000. Mike Fisher Hackers is giving out the card just to help the poor and needy though it is illegal but it is something nice and he is not like other scam pretending to have the blank ATM cards. And no one gets caught when using the card. get yours from Mike Fisher Hackers today! *email: blankatm002@gmail.com you can also call or whatsapp us Contact us today for more enlightenment +1(301) 329-5298

    ReplyDelete