4 October 2019CopyrightRory O'Neil

CJEU rules takedown orders can apply outside EU

A ruling of the Court of Justice of the European Union (CJEU) in a defamation case involving Facebook is set to have significant ramifications for EU copyright law.

The CJEU ruled yesterday, October 3, that member states can order online platforms to delete posts which are “equivalent or identical” to content which they have found to be illegal, and that these orders can apply worldwide.

The case was brought by former Austrian Green Party politician Eva Glawischnig-Piesczek after a Facebook user shared an Austrian news outlet’s story about the party’s policy on minimum income for refugees.

An image of Glawischnig-Piesczek was attached to the post as a thumbnail image, while the user in question posted what Austrian courts considered to be a defamatory comment about the politician.

The Vienna Commercial Court ordered Facebook to remove the post in question, as well as any “identical” or “equivalent” content, meaning content which either repeated the post verbatim or made the same defamatory allegations against Glawischnig-Piesczek.

Facebook agreed to delete the post in question, but argued that the order should apply only to users in Austria.

The case was ultimately referred to the CJEU by the Austrian Supreme Court, which sought clarification on whether EU member states were allowed to order platforms to delete identical and equivalent content to that which had previously been found to be illegal, and whether these injunctions could apply worldwide.

In yesterday’s ruling, the CJEU said that under the EU’s E-commerce Directive, member states have the authority to impose worldwide injunctions on illegal, equivalent, and identical content.

According to the CJEU, the illegality of defamatory content was derived from the “message conveyed” rather than a combination of certain terms.

As such, orders to remove defamatory content must be able to extend to posts which convey the same message, even if they are phrased differently, the court found.

While the case dealt specifically with defamation, it is likely to have have a major impact on all content found to be illegal.

Eleonora Rosati, of counsel at Bird & Bird and associate professor in IP law at the University of Southampton, told WIPR that “the principles that the CJEU set in relation to article 15 of the E-commerce Directive go well beyond defamation and can also apply to injunctions in the copyright field and other IP rights”.

“As far as copyright is concerned, the likely implications are that injunctions and resulting obligations of intermediaries can be quite broad and apply to content identical and also equivalent to that found illegal,” Rosati said.

She added: “Yesterday's ruling appears to pave the way for broad injunctions (which will need, however, to be assessed and issued by national courts) that not only apply to the whole of the EU, but might also have extra-EU effects.”

A Facebook spokesperson told WIPR that the judgment raises “critical questions around 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”.

The CJEU’s ruling “undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country,” the spokesperson said.

They added: “In order to get this right national courts will have to set out very clear definitions on what ‘identical’ and ‘equivalent’ means in practice. We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”

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