Facebook must delete similar, illegal content!

EU law does not preclude a hosting provider such as Facebook
from being ordered to remove comments with identical wording
and, under certain circumstances, comments with identical meaning that have previously been declared unlawful.

The ECJ ruled this on Friday.

Union law also does not preclude such a ruling from having worldwide effects within the framework of the relevant international law
, the consideration of which is a matter for the Member States.

This, too, was decided by the ECJ, generating some criticism among lawyers.

The Supreme Court in Austria asked for the interpretation of the E-Commerce Directive. According to this Policy, a hosting provider such as Facebook is not responsible for any stored information if it is not aware of its unlawful nature or if, as soon as it becomes aware of it, it takes immediate action to provide such information. or block access to it.

However, this exclusion does not prevent a hosting provider from being ordered to stop or prevent an infringement, including by removing or blocking access to illegal information.

On the other hand, the Directive prohibits a hosting provider from generally monitoring the information it stores or actively investigating circumstances indicating illegal activity.

In its judgment, the Court answers the Supreme Court that the
Directive on electronic commerce, which aims to strike a balance between the
various interests involved, does not prevent a court of a Member State
from ordering a hosting provider to do so,

• to remove or block access to the information stored by it that has the same content as information that has previously been declared unlawful, regardless of who commissioned the storage of the information
  ;
• to remove or block access to the information it stores which has the same content as information previously declared unlawful, provided that the monitoring and research of such an injunction is carried out information concerned is limited to information which conveys a statement the content of which has remained essentially unchanged in relation to the content which led to the finding of illegality, and which includes the details contained in the and provided that the differences in the wording of that identical content are not such as to force the hosting provider to provide an autonomous form of information which has been declared unlawful. assess this content (for example, the hosting provider can use automated techniques and means of investigation);

This is a very far-reaching judgment, which also explicitly makes not only Facebook, but also all providers of chat platforms, forums and the like. It could therefore be that similar requests occur more frequently and that one, as a provider of such a platform, should be prepared to be able to meet these demands technically.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.