Digital Rights, Press Freedom, Defamation / Reputation
The Case of RTVBN d.o.o.
Bosnia and Herzegovina
Closed Contracts Expression
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The Austrian Supreme Court ruled that Facebook must cease and desist from the publication of all hate postings, verbatim re-postings or re-postings using words having an equivalent meaning against Austria’s Green party leader, Dr. Eva Glawischnig, and delete them not just in Austria but worldwide. The case was brought by Austria’s Green party after the party’s head, Dr. Glawischnig, was insulted on Facebook by posts from someone who did not use his or her real name. The claimant sought a preliminary injunction, which included the obligation to delete verbatim renderings of the unlawful content or content of equivalent meaning. The Court affirmed that the assertions were defamatory value statements, which were clearly aimed at insulting and vilifying Dr. Glawischnig personally and therefore being unlawful. Referring to a preliminary ruling of the Court of Justice of the European Union (CJEU), the Court held that an obligation of a social network provider to monitor and delete verbatim content or content equivalent to the content that was declared unlawful has to be sufficiently specific and proportionate. It found that the cease and desist injunction imposed on Facebook was sufficiently specific in regard to the required conduct and did not impose a disproportionate or excessive duty on Facebook to monitor its content.
The claimant is Austria’s Green party (Austrian Greens) and it brought the case on behalf of Dr. Eva Glawischnig-Piesczek, the party’s head and a representative in the ‘Nationalrat’ (National Council, or Lower House). The Defendant is Facebook Ireland Limited, the operator in charge of users outside the U.S.
On April 3 2016, an anonymous user with the username “Michaela Jaskova” uploaded on his or her profile an article from “oe24.at” showing Dr. Glawischnig’s picture and calling her “miese Volksverräterin” (rotten traitor), “korrupten Trampel” (corrupt oaf) and her party a “Faschistenpartei” (fascist party).
On July 7 2016, Dr. Glawischnig asked the defendant to delete the post and to communicate the user’s real identity. After the defendant neither deleted the post nor passed on the user’s identity, the claimant issued proceedings in the Handelsgericht Wien (first instance court in Vienna) claiming that by publishing Dr. Glawischnig’s picture, the defendant violated her right to control any use of her own image under § 78 Urheberrechtsgesetz (Austrian Act on Copyright and Related Rights). It also claimed that the comment, which was posted together with the picture, constituted an infringement of § 1330 Allgemeines Bürgerliches Gesetzbuch (ABGB or Austrian Civil Code), which protects people from hate speech. The claimant sought a cease and desist injunction. The defendant argued that it was governed by Californian law (site of its headquarters) or Irish law (European base) but on no account by Austrian law. Secondly, it referred to its host-provider privileges under the European Community’s E-Commerce-Directive (ECD) which excludes host-providers from liability for their users’ content, as long as the host-provider is not aware of any unlawful activities (Art. 16 ECD). Facebook also alleged that the impugned comments were protected under the right to freedom of expression pursuant to Art. 10 of the European Convention on Human Rights (ECHR).
The First Instance Court ruled in favor of the claimant and granted a preliminary injunction that the defendant must cease and desist from the dissemination of pictures of Dr. Glawischnig in connection with a verbatim rendering of the assertions or words of equivalent meaning. Thereupon, the defendant deleted the post within the geographical borders of Austria.
On appeal, the Oberlandesgericht Wien (regional court of appeal in Vienna) determined that the dispute was governed by Austrian law. The court said that an individual’s right to protection of dignity and reputation had to be balanced against Art. 10 ECHR, the Convention’s right to freedom of expression, including political expression. However, it reasoned that the postings went beyond political comment and were clearly aimed at insulting and vilifying Glawischnig personally. The assertions were not legitimate criticism and they therefore could not be protected under Art. 10 ECHR. Facebook could not rely on Art. 16 ECD to escape its liability, because once Facebook had been asked to delete the posts it became an accomplice in the violation of the Glawischnig’s right under § 78 Urheberrechtsgesetz, because even an ordinary person without legal expertise would realize that the assertions clearly constituted hate speech. Furthermore, the court held, contrary to the lower court, that while Facebook could easily delete verbatim repetitions of the hate posts by automated process, it would be unreasonable to require it to monitor and control all content on its platform for postings being equivalent to the ones in the original posting because of the vast number of its users. Therefore, the court upheld the injunction against the defendant, but limited the obligation to delete postings using words with an equivalent meaning to the assertions to the extent, that those postings have to be deleted only, when “brought to [the Defendant’s] knowledge by the Claimant or a third party or come to the [Defendant’s] attention by other means” [p. 2]. Moreover, the defendant’s request to limit the preliminary injunction on the territory of Austria was refused and not raised again in the proceedings before the Supreme Court.
Before the Austrian Supreme Court, the claimant sought the restoration of the preliminary injunction issued by the first court and the defendant argued that the obligation to cease and desist from publishing verbatim content or content with an equivalent meaning imposes an impermissible proactive monitor obligation. By Order of Reference of October 25, 2017 the Court referred questions pertaining to the scope of content to be removed as well as the territorial scope of the removal to the CJEU for a preliminary ruling. The Advocate General delivered his preliminary opinion on June 4, 2019. The Third Chamber of the CJEU delivered its opinion on October 3, 2019 (C-18/18, [Glawischnig-Piesczek/Facebook Ireland] EU:C:2019:821) and found that the E-Commerce Directive does not preclude a Member State from ordering a hosting provider to remove or block content that has been declared unlawful, or content that is identical or equivalent to such unlawful information, because it would fall within the allowance for monitoring in a “specific case” and thus not violate the Directive’s general monitoring prohibition. The Court also held that the Directive does not preclude Member states from ordering such removal worldwide, and therefore left it to the Member States to determine the geographic scope of the restriction within the framework of the relevant national and international laws.
The Austrian Supreme Court delivered a per curiam opinion and granted the claimant’s appeal. It overruled the Court of Appeal’s limitation of the cease and desist injunction and affirmed the first instance court’s decision that Facebook must delete every post showing Dr. Glawischnig’s picture if the connected comment contained the expressions “miese Volksverräterin”, “korrupter Trampel” or “Faschistenpartei”, had verbatim content or used words having an equivalent meaning. The central issue for the Austrian Supreme Court was to determine whether the preliminary cease and desist injunction on a host provider, which runs a social network with a large number of daily users, can also be extended on verbatim renderings of the content or of words of equivalent meaning that it has not been aware of.
Firstly, the Court referred to its Order of Reference, where it noted that § 78 Urheberrechtsgesetz prohibits the publishing of people’s images if from an objective standpoint that would violate their “legitimate interests”, especially in the case of the misuse of images in a pejorative or vilifying manner. § 1330 Austrian Civil Code protects people’s reputation in regard to slander and false allegations of facts. The Court affirmed that the incriminating assertions, which clearly refer to the claimant depicted in the post, are defamatory value judgements within the meaning of § 1330 (1) Austrian Civil Code since there is no concrete assertion of conduct with a verifiable basis of facts. The impugned assertions were aimed at “offending, insulting and defaming” the claimant. [para. 1]
With reference to the decision of the CJEU, the Court stated that pursuant to Art. 15 (1) ECD a general obligation on access and host providers to monitor transmitted and stored third-party content is not permitted. For this reason, those providers must not be obliged to actively search for unlawful content on their own initiative. However, it is admissible for national authorities to impose targeted monitoring measures, e.g. in enforcement of injunctions. Such an injunction may also include the ban of future legal violations, including by other third parties.
In accordance with the findings of the CJEU, the Court held that “equivalent content” is content which at its core corresponds to the content that was previously declared to be unlawful. As a part of this assessment, the Claimant’s interest in effective legal protection has to be proportionately balanced against the provider’s interest in not having to take disproportionate monitoring measures. Therefore, the Court concluded that an injunction on equivalent content is admissible, if this “core-congruence” appears at first glance to a layperson or can be determined by technical means (e.g. filter software). The preliminary injunction must specify the decisive criteria for the judgment of unlawfulness in a sufficiently precise manner.
In the case at hand, the preliminary injunction would materially define the content whose publication has to be omitted and does not require an autonomous assessment by the defendant. Therefore, the Court held that the injunction would be sufficiently definite and not impose excessive or disproportionate obligations on the defendant to monitor its content.
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The Court’s decision affirms that social media platforms are liable for its users’ content as soon as they are informed of illegal activity and their obligation to remove the unlawful content also comprises content of equivalent meaning. These obligations can apply worldwide. Depending on the individual case and injunction issued, this can imply that content providers have to proactively monitor content and interpret whether it is “equivalent” or not to the content that has been found to be unlawful.
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