Based on the recent decision of 3 October 2019, the Court of Justice strengthens the obligation for hosting providers to stay down on a worldwide scale, concerning all identical and/or equivalent contents previously declared to be illegal.


La vicenda

Mme Eva Glawischnig, a member of the Austrian Parliament, seeks an order that facebook removes a comment, published by a user on his personal profile and available for any facebook user, harmful to her reputation, and allegations which were identical and/or of an equivalent content.

The context behind the preliminary ruling and the request of the Court

LThe Oberster Gerichtshof (Supreme Court, Austria), when called upon to give a ruling on the question, asks the Court of Justice to interpret art. 15 of the Directive on electronic commerce (Directive n. 2000/31), which provides for a general prohibition on the supervision of host providers. In particular, the Austrian Supreme Court asked whether art. 15 generally precludes the obligation imposed on a hosting provider, who has not promptly removed unlawful information, to remove not only that illegal information but also others identical or equivalent worldwide.

The CJUE solution

The Court of Justice, by the abovementioned decision, clarifies that although art. 15 (1) of the E-commerce Directive prohibits Member States from imposing on hosting service providers a general obligation to monitor information they transmit or store, as it stands out from recital 47 of the Directive, that obligation does not concern monitoring obligations in “specific cases”. Such a specific case may arise, as in the present case, from precise information, stored by the service providers and requested by a social network user, the content of which has been analyzed and considered unlawful by the Court of the member state. Consequently, it is legitimate to consider that the Competent Court may require the hosting providers to remove information which it stores, the content of which is identical to the content of information was previously declared to be unlawful or to block access to that information, irrespective of who requested the storage of that information. The same has been acknowledged in relation to equivalent contents, provided that it contains specific elements duly identified such as the name of the person concerned, the circumstances in which that infringement was established or a content equivalent to that declared unlawful, so as not to compel the hosting provider to carry out an independent assessment of that content.
Finally, the Court of Justice clarifies that article 18 (1), Directive n. 2000/31 does not provide for any territorial limitation and therefore does not preclude the abovementioned injunctive measures from producing worldwide effects.