Facebook can be ordered to delete content worldwide, the Court of Justice of the European Union rules

Court of Justice of the European Union (CJEU) has ruled in case C 18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited that EU law allows national courts to order host providers such as Facebook to remove “identical and, in certain circumstances, equivalent comments previously declared to be illegal”. In this long awaited case Austrian politician, Ms. Glawischnig-Piesczek has asked in national court that Facebook deletes defamatory statements about her, as well as equivalent statements, worldwide. The Austrian Supreme Court has asked CJEU to decide on the interpretation of Directive on e-commerce, specifically on the obligation of the host provider to remove or to disable access to illegal information as soon as it becomes aware of it. In its decision, CJEU has concluded that Facebook as the host provider can be ordered by a national court to to remove information globally with identical content and equivalent content to the illegal information or block such information regardless of who posted it. In case of equivalent content the host provider should use such means as not  to carry out an independent assessment of the content ( the host provider may have recourse to automated search tools and technologies). This has several consequences:

  • National courts of EU member states can issue a decision with global effect with the risk of suppression of freedom of expression in other countries;

  • National courts of EU member states can mandate the use of technology (filters) to the host providers with global effect;

  • The ruling involves 2.2 billion users who are not a party to the court proceeding, only Facebook as a host provider is a party (defendant). The users and their rights are directly affected by this decision;

  • CJEU did not take into consideration what technical means are required to remove identical and equivalent content and how these would affect the rights of users (unintended effects);

  • CJEU has stated that Facebook is not required to undertake an independent assessment of the content to be removed – e.i. not to assess the context of the statement, which could lead to taking down unintended content and violating the rights of other users.

Facebook said in a statement that the European court’s decision “undermines the longstanding principle that one country does not have the right to impose its laws on speech on another country.” It added that the judgment raised questions about freedom of expression and “the role that internet companies should play in monitoring, interpreting and removing speech that might be illegal in any particular country.”