Judgment in Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited 03 October 2019
EU law does not prevent social media sites from:
– being required to remove identical comments decided illegal by the Courts.
– in certain circumstances from being ordered to remove equivalent comments previously determined to be unlawful by the Courts.
– to block access or to remove illegal information worldwide within the framework of the relevant International law, and it is up to member states to take that law into account.
Disparaging and abusive comments on Facebook were found to be libellous and harmful to the reputation of Ms Glawischnig-Piesczek by an Austrian Court. Ms Piesczek is a Green Party politician in Austria.
On referral to the Court of Justice by the Supreme Court of Austria, the European Court of Justice interpreted the Directive on Electronic Commerce Directive 2000/31/EC 08 June 2000 (the “2001 Directive”).
The preamble to the 2001 Directive sets out as one its important goals the establishment of a balance between the – (para 41) – “different interests at stake”.
In the Directive’s case, it is striking a balance between the interests of the self-styled custodians of freedom of speech and online user content; and privacy and the protection of personal information and reputation on the Internet.
The 2001 Directive’s aim worked.
For a while, it established that middle ground, excluding social media platforms from liability for any content for which they merely provided an automated function.
Articles 12,13,14 and 15 of the 2001 Directive exempted platforms for hosting; caching and acting as a mere conduit; including no general obligation to monitor platforms.
In the UK, s5(2) of the Defamation Act 2013 gives operators of a website a defence if they were not the poster of the online comment.
As a result of the soft approach, sites like Facebook grew into Internet giants. However, the Internet has grown into a massive media force and continues to do so. Defamation and abuse of privacy online have long been at epidemic proportions.
The pendulum has shifted to the increased protection of IP, reputation and privacy online. See also the The EU Copyright Directive 2019.
The Piesczek case is the latest in several EU laws and judgments that are paving the way for more EU legislation to better regulate website responsibility for user content.
Existing Legal Framework
Briefly, s5 of the Defamation Act 2013 governs actions brought against operators of websites for online comments.
s5(3) sets out the circumstances under which the operator could be liable.
To complain about defamatory comments online, you may take action directly against the author of the libellous statements.
You may require identification of the user if not provided by the platform under Paragraph 8(b)(i) of the Schedule to the (Operation of Websites) Regulations 2013, SI 2013/3028
By Peter Adediran
The writer is a digital media and IP lawyer, owner and principal solicitor at PAIL® Solicitors. Peter Adediran’s specialist niche area of practice is IP and website/mobile app compliance and contract law for SMEs, artists and management. Contact Peter Adediran on +44 (0)207 305-7491 or by email to email@example.com.
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