CJEU decides on obligation of Social Media operators to search their networks for "hate speech" - Austria

04 October 2019 | newsletters

Case: C‑18/18; Eva Glawischnig-Piesczek vs Facebook Ireland Limited

On 3 October 2019 the Court of Justice of the European Union ("CJEU") provided guidance on Social Media operators obligations to monitor their networks for "hate speech".

1 Background of the case

In 2016 Eva Glawischnig-Piesczek, a (former) Austrian politician, was exposed to an offensive post on Facebook. Upon her request Austrian Courts obliged Facebook to remove the said post. However, it came under dispute as to whether a Social Media operator, like Facebook, is obliged to proactively remove "equivalent" posts, even in cases where the operator has not received any indication about allegedly unlawful posts being spread on its network. The Austrian Supreme Court has referred this question to the CJEU in light of Art 15 E-Commerce Directive which prevents Member States from imposing general monitoring duties on host providers (like, e.g., Social operators).

2 Outcome

The CJEU's ruling essentially forms a balancing of the right to privacy vs freedom of speech. Thus, the CJEU's ruling and its considerations of limitations need to be equally considered:
The CJEU ruled as follows:

  • Art 15 Para 1 E-Commerce Directive does not prevent national courts from obliging host providers to remove content that is identical to content which has previously been declared unlawful.
  • Such obligation may apply irrespective of who has uploaded or otherwise provided that content.
  • If national law provides the respective grounds, such obligation shall apply to the Social Media operator on a worldwide basis.

No less important are the CJEU's limiting considerations:

  • The said obligation shall only apply where the equivalent, "initial" content has been declared unlawful by courts.
  • The content to be removed shall reflect the same details as had been declared unlawful in the preceding court order.
  • The provider shall not be obliged to autonomously assess the legitimacy of the content to be removed.
  • Rather, the content to be removed needs to be so similar to the content previously declared unlawful, that the provider can refer to an automated means to identify and remove that content.  

3 Comments

The sensitivity of this judgement asks for it to be handled with care. On the one hand the CJEU has clarified that a general obligation of a host provider to monitor content hosted on its network does not necessarily interfere with Art 15 of the E-Commerce Directive. On the other hand, the CJEU has established sharp limitations to such obligation, not least to protect the freedom of expression. In essence, any such proactive monitoring shall be limited to what has previously (and precisely) been defined by courts as unlawful, and, maybe most notably, the operator shall not autonomously assess  the lawfulness of the content to be removed. In other words, it can be taken from the CJEU's ruling that content which deviates in its statements, but also in its phrases or language shall not be removed, as long as it does not clearly correspond to content that was declared unlawful by courts.
This decision might not have that much of an impact on Social Media providers as it seems at first glance. It does not impose general monitoring obligations but rather wants to ensure that information gets removed if equivalent information has already been declared unlawful by courts. This ratio certainly is reasonable, but must not be overinterpreted by claiming proactive monitoring duties for Social Media providers.
 

Authors: Günther Leissler, Andreas Natterer, Sara Khalil

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Günther Leissler

Counsel

T: +43 1 534 37 50276
g.leissler@schoenherr.eu

Andreas Natterer

Partner

T: +43 1 534 37 50151
a.natterer@schoenherr.eu

Sara Khalil

Attorney at Law

T: +43 1 534 37 50744
s.khalil@schoenherr.eu

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