18.06.2019
QUESTION OF THE PERMISSIBLE SCOPE OF THE OBLIGATIONS OF HOST PROVIDER BY COURTS
On the OGH’s referral request[1] The ECJ is currently deciding to what extent Facebook Ireland Limited (the European subsidiary of Facebook Inc.) as a host provider within the meaning of the E-Commerce Act (ECG) can be obliged to search information posted by users in order to delete or block illegal posts or comments or posts and comments that are similar to them.
The initial facts are as simple as they are ubiquitous: A Facebook user publicly posted a photograph of a former top politician on this platform and accompanied the posting with a derogatory comment about the person.
The person concerned applied for an interim injunction to order Facebook to refrain from publishing and/or distributing photos showing her if the accompanying text contains word and/or "equivalent“ Claims were being spread.
The Supreme Court ultimately had to decide whether such an injunction could also be extended to statements with the same wording and/or meaning that had not yet come to Facebook Ireland’s attention, and furthermore whether such an injunction had to be applied worldwide, and called for a preliminary ruling with regard to the interpretation of Directive 2001/31/EC (E-Commerce Directive)[2] (which provides that a host provider such as Facebook cannot be required to monitor the information it stores or actively search for illegal content with regard to content posted by users[3]) to the ECJ.
The Supreme Court considered that the question of whether a monitoring obligation for host providers with regard to violations of the personal rights of a specific person is compatible with the requirements of the E-Commerce Directive required clarification by the ECJ.[4] The OGH judged the content of the posting itself to be an offensive value judgement within the meaning of Section 1330 ABGB.
In his opinion, Advocate General Maciej Szpunar argues[5] the view that Directive 2001/31/EC does not preclude a court order ordering a hosting provider to search all information posted by users of the platform and to identify information that is identical to the information classified as unlawful.
He also considers it permissible to order host providers by courts to identify information that is equivalent to the information classified as illegal, although only the information posted by the user who posted the original illegal information can be searched.
Nor does he consider Directive 2001/31/EC to be in conflict with an order to a host provider to demand the worldwide removal of such information, because the Directive simply does not regulate the geographical scope of an obligation to remove such content.
In summary, the Advocate General does not consider that the provisions of the E-Commerce Directive are in conflict with court orders to host providers to search for and identify content that is identical in wording and meaning to illegal content, although these obligations must be limited in that identical in meaning content can only be identified if it originates from the same user who posted the original illegal content.
The ECJ is not bound by these views of the Advocate General in its decision.
[1] OGH 25.10.2017, 6 Ob 116/17b (Miserable Traitor II).
[2] 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”).
[3] See Article 15 of Directive 2000/31/EC and Section 18 paragraph 1 of the ECG.
[4] See also the comments by Thiele in jusIT 2018/2.
[5] GA 04.06.2019, C-18/18 (Eva Glawischnig-Piesczek v Facebook Ireland Limited).