Following a landmark judgment from the European Court of Justice, Facebook and other social media platforms can now be ordered by one Member State to take down posts globally if they are deemed to be illegal.

BACKGROUND

This decision came after a referral to the ECJ from the Austrian courts relating to Facebook posts about Austrian politician Eva Glawischnig-Piesczek which she requested be taken down. These posts were declared as defamatory under national law, however the dispute was as to whether Facebook were required to take these posts down.

The question referred was whether Article 15 of Directive 2000/31 which states that social media platforms could not be made to actively monitor all posts, or to actively seek out illegal activity, could be overridden by a court order requiring them to do so.

The legislation reads as follows:

Article 15

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.”

This meant that media platforms were not responsible for illegal content that was posted by their users unless and until they had been made aware of that content. Once they knew about the content, they then had to act as quickly as possible to remove that content.

DECISION

The European courts have now held that if the court of a Member State finds a particular post to be illegal, it can order owners of websites and apps to take down identical or equivalent versions of it.

The judgment notes “Directive 2000/31, in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from… Ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information…” [53].

In addition, a court in one country can order that these posts be taken down in another country. Again in Paragraph 53, it was held that a national court could not be precluded from “ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law”.

Facebook are unable to appeal against this ruling, given that it has been issued by the highest court in the EU.

IMPACT ON FREEDOM OF SPEECH?

This judgment ensures responsibility is now on social media platforms to identify similar posts to those that have been declared illegal and make plans to remove them. This onus had always been on the victims of defamatory or illegal statements.

Facebook raised concerns that what may be considered illegal in one country may not be considered illegal in another, and claimed this ruling might be manipulated by certain countries who aim to control content.

This could also have a major impact given that Facebook may be required to monitor posts more carefully and make decisions as to whether these contravene the direct order of a court.

The ruling refers to “equivalent” posts, but no definition of what would be considered equivalent has been set out. However, this could be completed through automated artificial intelligence systems, meaning that it might not be such an onerous task for social media platforms such as Facebook.

However, the judgment can also be seen as clarifying the law that surrounds social media platforms. The ruling ensures that these companies are aware of their responsibilities and can comply with them within the European legal framework.

It remains to be seen what the truly global impact of this ruling can be, given that the ECJ is not binding on non-Member States.