Thread by @gabrielazanfir

With my last drop of CJEU judgments brainpower for the week, here are some key points from the global takedown of #Facebook defamatory comments case published yesterday #Glawischnig Long thread alert! 1/x curia.europa.eu/juris/document…

Setting the scene: this is not a data protection or #privacy case. This is a case concerning deletion of information, but grounded on defamation. It is irrelevant for the case at hand that those comments contained personal data, even if they did. 2/

Fun fact: the #GDPR specifically excludes from its scope of application those situations which also fall under the scope of liability rules for intermediary service providers, Art 12 to 15 from eCommerce Directive, precisely what the CJEU was asked to interpret. 3/

So in this case, even if the issue at hand involved processing of personal data and the platform is a controller, the #GDPR doesn’t apply since it is a matter of intermediary liability governed by Article 15 of the #eCommerce Directive. Now the case: 4/

A politician in Austria asked Facebook to take down a comment that she found defamatory. FB refused, the politician challenged refusal in Court and the Court agreed comments were defamatory & issued an injunction for FB to takedown the illegal content 5/

...not only from the challenged comment, but all equivalent content from the platform, worldwide 🌎. The Court of Appeal decided though that only the comments specifically challenged should be erased, and only in Austria. 6/

Case is now with the Supreme Court and the Supreme Court stopped proceedings to ask the CJEU how to interpret the e-commerce Directive & its intermediary liability clauses vis-a-vis the territorial scope of takedown orders & the ‘equivalent’ content issue. 7/

*Very relevant to mention*: the CJEU did not make any findings on the legality of the comments themselves. It made an *in abstracto* judgment about illegal content, starting from the finding of national courts on substance. 8/

As for taking down content ‘equivalent’ to illegal content, the Court found from EN, ES, FR versions of the law that takedown orders are intended to terminate ‘any’ infringement & to prevent ‘any’ further breach of rights (p 30), even if the DE version is less specific 9/

The Court then underlined that Art 15 of the #eCommerce Dir states that MS *must not impose a general obligation on providers to monitor the information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity*-p 31

The Court then added that such prohibition ‘does not concern the monitoring obligations in a specific case’ (p 35), such as the case of ‘a particular piece of information stored by the host provider:
1) at the request of a certain user of its social network, 11/

2)the content of which was examined and assessed by a court having jurisdiction in the Member State
3) which, following its assessment, declared it to be illegal.
So, only when a takedown request meets all of the above conditions, should FB try & identify equivalent content 12/

And even then, only that content which is quasi-identical should be sought and removed. If there are any differences in wording, *they must be so insignificant that the host must not carry out an independent assessment of that content*. (45, 46) 13/
#KindOfABigDeal

The Court is then super clear: ‘such an injunction specifically *does not impose* on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity’ (47) 14/

As for the worldwide scope of the takedown, the Court finds that the Directive doesn’t include any territorial limitations on the scope of the measures that Member States can take, so it ’does not preclude those injunction measures from producing effects worldwide’ 15/

This is totally up to the Member States, but the Court points out Recitals 58 and 60 of the Directive, which underline that EU rules on eCommerce must be consistent with the rules applicable at international level, with specific references to #WTO, #OECD & #UNCITRAL 16/

Finally, remember the CJEU made a judgment in abstracto concerning the defamation allegations. After the Supreme Court in Austria gives its judgment, any party thinking their fundamental rights were infringed can challenge it to the ECHR, including FB #EUFundamentalRightsFTW 17/

THE END. 18/18