Facebook may need to detect defamation-related similar posts
In an opinion to the Court of Justice, Advocate General Maciej Szpunar ruled that in a case of defamation or defamation found to be unlawful, Facebook could be obliged to track down all comments that are identical to it. They must then be removed or blocked.
According to Szpunar, a social network can be required by a national court to screen all information posted by the users of that platform and to filter out information that is identical to an expression previously found to be illegal by that court. In any case, the EU directive on e-commerce does not oppose this.
This concerns cases of defamation and slander, where, for example, an offensive, insulting comment about someone is posted on Facebook. If that person enforces through the court that Facebook must remove that comment, then that court can also oblige Facebook to track down and remove other, similar comments, provided those comments are related in meaning. This obligation to trace can also have a worldwide application.
According to Szpunar, an obligation to also find and delete related, similar comments is subject to restrictions or conditions. The judge ruling on such similar comments must ensure that the consequences of his order are clear, precise and foreseeable.
In doing so, he must weigh up all the fundamental rights involved and ask himself whether the same can be achieved with less weighty means. The broader removal order should not go beyond what is necessary to achieve the protection of the person concerned. This may mean ordering that related comments are not removed, but, for example, blocking access to that information via geo-blocking. Szpunar formulates these terms because he recognizes that it has the potential to lead to censorship and an infringement of, for example, freedom of expression and access to information.
This case got underway after Eva Glawischnig-Piesczek, an Austrian MP for the Greens, was confronted with hurtful comments from a Facebook user. This user shared an article advocating for the preservation of refugee benefits, calling the MP “corrupt”, saying she was a member of a “fascist party” and calling her a “worthless traitor to the people”. After Facebook did not respond to its removal request, Glawischnig-Piesczek forced through the courts that Facebook blocked access to the libelous comments in Austria.
The judge also had to formulate an answer to the question whether this order has a broader effect, in the sense that it may be applied worldwide and also applies to the words and comments that Facebook has no knowledge of and which are identical in scope. . To answer that, the Austrian court requested that the EU e-commerce directive be interpreted in this context. According to that directive, a hosting provider, such as Facebook in this case, is in principle not liable for information stored on its servers by third parties, provided it is not aware that it is illegal information. The Directive also provides that no general obligation can be imposed to actively seek out things that indicate illegal activity.
Szpunar does not propose such a general obligation; he merely argues that the Directive does not preclude a well-defined order by a national court to remove or block access to certain messages related to defamatory comments found to be unlawful in a specific case. The Court of Justice is not obliged to follow this advice, although these conclusions of the Advocate General are considered weighty and are often followed.