In this case, the Austrian Supreme Court was faced with the issue to what extent is Facebook obligated to remove defamatory content posted by its users. It raises questions both about global removal and about proactive monitoring of user content.
The plaintiff, Ms Glawischnig - former leader of the Green Party in Austria, requested that Facebook removes a post with her photo and a comment calling her among others a “lousy traitor”, a “corrupt boor” and her party a “fascist party”. The plaintiff also requested that Facebook removes comments with not exactly verbatim, but similar content.
Facebook refused to comply with the request, claiming that as a host provider it is not obligated to remove the content, unless it has been informed of the infringing content and it's unlawfulness is apparent to a legal layman. According to Facebook this was not the case since the comments were addressed against a politician and were therefore within the boundaries guaranteed by freedom of speech.
The first instance court granted the requested preliminary injunction. The appeals court reduced the scope of the injunction to verbatim copies of the infringing comments. An obligation to remove also similar infringing content was denied, since due to the amount of active Facebook users, complying with such a request would be “close to impossible”.
According to the Supreme Court the post does not lie within the boundaries guaranteed by freedom of speech and therefore infringes the plaintiff’s personality rights guaranteed by § 78 Urheberrechtsgesetz (Copyright Act) and § 1330 Allgemeines bürgerliches Gesetzbuch (Civil Code). According to Austrian case law, the plaintiff can sue for injunctive relief not only with respect to the issued defamatory statements, but the court can also order the infringer to abstain from issuing similar defamatory statements in the future.
According to § 18 E-Commerce-Gesetz (implementation of Art 15 of the E-Commerce-Directive) a host provider does not have a general obligation to monitor the information it transmits or stores. However, if once the host provider has been made aware of an illegal information or infringing content, according to Austrian case law the provider has a special obligation to monitor specific information and prevent the recurring infringement of personality rights by specific users.
It is unclear to what extent and how this special monitoring obligation applies to social media, therefore the Court submitted the following questions to the CJEU for preliminary ruling (loose translation):
1. Does Art 15 of the E-Commerce-Directive prevent the Court from ordering a host provider, not only to remove the specific infringing content expeditiously upon obtaining awareness of it, but also to:
a, remove all verbatim copies of it worldwide,
b, block the access all verbatim copies in the member state,
c, remove all verbatim copies published by the specific user worldwide,
d, block the access to the verbatim copies published by the specific user in the member state.
2. If the answer to the question above is negative: does this apply to not verbatim but similar content?
3. Does this apply to not verbatim but similar content immediately as the host provider obtains knowledge of it?