According to ECJ Advocate General Szpunar, Facebook can be forced to elicit and identify all comments that are word-for-word identical to a defamatory comment whose illegality has been established, as well as comments with the same meaning, provided they originate from the same user

A member of the Austrian National Council applied to the Austrian courts for an injunction against Facebook to put an end to the publication of a defamatory comment.

This was preceded by a Facebook user posting on his profile page an article from the Austrian online news magazine oe24.at with the title “Greens: minimum security for refugees should stay”. This posting generated a “thumbnail preview” on Facebook from the oe24.at website, which included the title and a brief summary of the article, as well as a photo of the MP. The user also posted a disparaging comment on the article.

When Facebook did not respond to the request to delete the comment, the MP requested that Facebook be ordered to refrain from publishing and/or disseminating photos showing her if allegations with the same wording and/or “meaning” were disseminated in the accompanying text with the comment in question.

Since the requested preliminary injunction was issued by the court of first instance, Facebook in Austria blocked access to the originally posted contribution. The Austrian Supreme Court, which finally dealt with the matter, is of the opinion that the statements in question were intended to insult the honor of the MP, to insult and defame her. Since it has to rule on whether the injunction can be extended also and worldwide to statements that are not brought to the attention of Facebook and are identical in word and/or meaning, it has asked the Court of Justice to interpret the E-Commerce Directive in this context. According to this guideline, a host provider (and thus the operator of a social media platform
such as Facebook) is generally not responsible for the information posted by third parties on its servers if it has no knowledge of its illegality. However, once he has become aware of the illegality of the information, he must delete it or block access to it. Furthermore, the Directive does not impose a general obligation on a host provider to monitor the information it stores or to actively investigate circumstances that indicate illegal activity.

In his Opinion today, Advocate General Maciej Szpunar considers that the E-Commerce Directive does not prevent a host provider operating a social media platform such as Facebook from being ordered, by way of a court order, to search all information posted by users of that platform and to identify among that information any that is word-for-word identical to the information found to be unlawful by the court that issued the order. This approach, he said, could strike a balance between the fundamental rights at stake. On the one hand, this did not require any highly developed technical aids that could constitute an extraordinary burden. On the other hand, since information could easily be reproduced on the Internet, this approach proved necessary to ensure effective protection of privacy and personal rights.

The host provider may also be compelled by the court order to find out and identify information that is similar in meaning to the information classified as unlawful, although it need only search the information posted by the user who also posted the unlawful information. A court deciding whether to remove such meaningfully similar information must ensure that the effects of its order are clear, specific, and foreseeable. In doing so, it had to weigh the fundamental rights involved and take into account the principle of proportionality.

An obligation to identify meaningfully similar information posted by all users would not strike a balance between the fundamental rights involved. For one thing, he said, it requires costly solutions to track down and identify such information. On the other hand, the use of these solutions would lead to censorship, so that freedom of expression and information could be systematically restricted.