Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
In Progress Contracts Expression
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The Advocate General of the Court of Justice of the European Union (CJEU) issued an advisory opinion finding that Article 15 of the E-commerce Directive does not preclude Member States from issuing injunctions requiring Facebook to identify and filter not only information which has been found illegal, but also equivalent information globally. The action was initiated by Eva Glawischnig-Piesczek, former federal spokesperson and chair of the Austrian Green Party and member of the Austrian National Council in relation to alleged defamatory postings on Facebook. On appeal, the Supreme Court Austria, faced with actions brought by both Glawischnig-Piesczek and Facebook Ireland Ltd referred questions to the CJEU concerning the legitimate scope of the injunction based on EU law. According to the Opinion, Facebook can be ordered to prevent the dissemination of identical or equivalent defamatory posts by the identified user, and further prevent other users from disseminating identical defamatory information, thereby expanding the scope of Facebook’s monitoring obligation to every user. With respect to the geographical scope of the restriction, Member States are not prevented from imposing such an obligation worldwide but should limit those extraterritorial effects to ensure they are necessary and proportionate.
The applicant is Eva Glawischnig-Piesczek (Glawischnig), former federal spokesperson and chair of the Austrian parliamentary party “die Grünen” (the Greens) as well as a member of the Nationalrat (National Council in Austria). The defendant is Facebook Ireland Ltd., the operator in charge of users outside the U.S.
On 3 April 2016, an anonymous user with the username “Michaela Jaskova” uploaded on his or her profile an article from “oe24.at” showing Glawischnig’s picture and calling her “miese Volksverräterin” (lousy traitor), “korrupten Trampel” (corrupt bumpkin) and her party a “Faschistenpartei” (fascist party). Both posts could be accessed by any Facebook user.
On 7 July 2016, 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 Glawischnig’s picture, the Defendant violated her right to control any use of her own image under § 78 Urhebergesetz (Austrian Law on protection of copyright). 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 an injunction.
Facebook Ireland Ltd. 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. Facebook also alleged that the impugned comments were protected under the right to freedom of expression pursuant to Art. 10 EHRC.
On 7 December 2016, the First Instance Court ruled in favour of Glawischnig and issued an injunction ordering Facebook to cease publication and/or dissemination of Glawischnig photograph if accompanied by comments accusing her of being a lousy traitor of the people’ and/or a ‘corrupt oaf’ and/or a member of a ‘fascist party’ or ‘equivalent content’. Facebook complied but only blocked access within Austria.
The Oberlandesgericht Wien (Higher Regional Court Vienna) upheld the lower court ruling that the injunction on identical and equivalent content was not limited to the Republic of Austria but that Facebook was only obliged to cease the dissemination of ‘equivalent content’ once it was brought to their attention.
Both parties brought actions to the Oberster Gerichtshof (Supreme Court Austria). The Court is to adjudicate on “whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended, worldwide, to statements with identical wording and/or having equivalent content of which it is not aware.” (Opinion of the Advocate General, para. 20) While the scope of injunctions is based on national laws, those laws must comply with regional obligations, which in the present case is the E-commerce Directive.
On January 10th, 2018 the CJEU was presented with the following questions by the Austrian Supreme Court to determine the scope of the content and geographical restriction of the injunction:
(1) Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:
(b) in the relevant Member State?
(c) of the relevant user worldwide?
(d) of the relevant user in the relevant Member State?
(2) In so far as Question 1 is answered in the negative: Does this also apply in each case for information with an equivalent meaning?
(3) Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance? [para. 22]
Advocate General (AG) Szpunar delivered his Opinion on the allowable scope of content restrictions based on injunctions, without violating the general monitoring prohibition under Article 15 of the E-commerce Directive
The Advocate General first points out, that according to Article 15(1) of Directive 2000/31 a Member State may not impose a general monitoring obligation on a host provider. Therefore, the main issue to be determined is whether the content under scrutiny is limited to identical posts or may include equivalent content, and whether the obligation to monitor and filter the information on its server is national, regional or global.
The AG then clarified, that the CJEU has already established in previous decisions that Facebook is considered a hosting service provider within the meaning of Article 14 of Directive 2000/31 (SABAM, para. 27). Such a service provider is granted relative immunity from liability under the directive as long as it is not aware of any illegal information stored or illegal activity on the platform. If and when, the service provider becomes aware of any illegal content or behavior, it is obliged to act expeditiously in order to remove the impugned content. If the service provider fails to comply with its duty, it can be held indirectly liable under art. 14 Directive 2000/31.
Moreover, the fact that a service provider does not have a general monitoring obligation does not mean that there cannot be a monitoring obligation in a specific case, as pointed out by recital 47 of the Directive. In fact, a service provider can under art. 14(3) Directive 2000/31 be obliged to take measures to prevent further infringements, implying some sort of extended monitoring. As found in L’Oréal and Others, those measures can include a requirement to “actively monitor all or virtually all” of the data in order to prevent any further infringement (para. 139/144). In order avoid a general monitoring obligation it is limited to infringements of the “same nature” by the “same recipient of the same rights”, in that particular case regarding trademark rights (para 141/144). Additionally, the monitoring obligation has to be limited to a certain period of time to comply with the prohibition set out in art. 15(1) Directive 2000/31.
Applying those general observations to the case at the hand, the Advocate General stated that a court of a Member State can oblige Facebook to “seek and remove” all information identical to the information which has been found illegal by that court, whether posted by the user or others – thereby expanding the personal scope of the monitoring obligation to every user. Also, Facebook can be ordered to prevent any further infringement “of the same type and by the same recipient” (para 58). The AG stated, that this ensures a fair balance between the fundamental rights that are involved, because it first, does not present an extraordinary burden to Facebook, second it insures the protection of personality rights of the applicant and third respects the right of freedom of expression of the users since that right is not absolute and has to be weighed against competing rights.
The Advocate General recognized that the term equivalent information “ gives rise to difficulties of interpretation,” but that based on its use it can be inferred that it comprises content which “scarcely diverges from the original information” or “to situations in which the message remains essentially unaltered.” (emphasis in original. para. 67] The AG did not extend the scope to equivalent information posted by other users, on the grounds that it would require monitoring all information on the platform and thus, would lead to censorship which cannot be justified when weighing the opposing rights.
Addressing the necessity of worldwide removal, the AG determined that when information is found to be illegal, the service provider could be obliged to monitor the information globally depending on the nature of the content as neither EU nor International law prevent injunctions from being applied extraterritorially. The AG noted that differences in national laws, especially as they relate to defamation, leave it to each court to weigh the rights at issue. Therefore, a national court should limit the extraterritorial effects of its injunctions, bearing in mind that the obligation should not go beyond what is necessary and proportionate to achieve protection.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While Advocate General Szpunar stated that any restrictions must be based on a careful weighing of competing rights and that courts should only consider extraterritorial filtering if it is deemed necessary and proportionate, the required monitoring for “equivalent content” by the user and identical content by others significantly expands the scope of required monitoring. The Opinion does not fully address the technical challenges and pitfalls of such broad filtering requests. Further, the definition of “equivalent” information is also broad and vague.
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