The European Court Of Justice Rules On The Obligation Of Social Media Platforms To Remove Defamatory Content

The E-Commerce Directive 2000/31/EC (the “Directive”) provides that information service providers, such as social media platforms, are not liable for the defamatory information posted by their users, the so-called “mere conduit” defence. “Mere conduit” being that unlike newspapers and magazines etc., online service providers merely carry information.

Indeed, Article 15 of the said Directive prohibits Member States from imposing a general obligation on information service providers to monitor the content their users post, transmit or store on their platforms.

Up to now, if a party wished to have defamatory or illegal content removed from a social media platform, such party had to notify the relevant social media company and request that the post be removed. Failing this, the party could seek an injunction from the High Court ordering the defamatory or illegal content to be removed.

The landmark ruling from the Advocate General of European Court of Justice means that Facebook and such social media platforms can no longer take the position that they only have to remove posts when each one is individually noted to them.

In this case, Eva Glawischnig-Piesczek (Chair of the Parliamentary Party- The Greens) applied to the Austrian Courts for an Order directing Facebook Ireland Limited to remove a defamatory comment and any equivalent information. The Austrian Supreme Court referred the matter to the European Court of Justice.

The decision by the court was that such information service provider could be ordered to search all content, by all users on its platform, to identify not only identical content, but can be ordered to search information disseminated by a specific user to identify information equivalent to the defamatory or illegal information.

It is expected that the European Court of Justice will accept this opinion of its Advocate General and it will certainly place greater regulatory obligations on all social media platforms.

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