AG Szpunar: Worldwide content removal possible, but to be limited
On 4 June 2019, Advocate General Szpunar published his eagerly awaited opinion in a case brought before the Court of Justice of the European Union (CJEU) by the Austrian Supreme Court. Parties to the lawsuit are Eva Glawischnig-Piesczek and Facebook. One of the core questions of the matter is, inter alia whether a court could ask a host provider to remove illegal content on a worldwide basis. Obviously, such obligation would trigger far-reaching consequences.
AG Szpunar first emphasizes that it must be observed that Article 15(1) of Directive 2000/31 prohibits Member States from imposing a general obligation on, among others, providers of services whose activity consists in storing information to monitor the information which they store or a general obligation actively to seek facts or circumstances indicating illegal activity. However, host provider operating a social network platform may be ordered to seek and identify the information identical to the information that was characterised as illegal by a court that has issued the respective injunction. To the contrary, information merely equivalent to that characterised as illegal need to be searched for and identified only among the information disseminated by the user who disseminated that illegal information. In any case, the court must weigh up the fundamental rights involved and take account of the principle of proportionality.
Turning to the territorial reach of the injunction, AG Szpunar also applies an interesting approach highlighting the possiblity of (justified) geo-blocking. In his view, a court could adjudicate on the removal worldwide of information disseminated via the internet. However, owing to the differences between, on the one hand, national laws and, on the other, the protection of the private life and personality rights provided for in those laws, and in order to respect the widely recognised fundamental rights, such a court must, rather, adopt an approach of self-limitation. Therefore, in the interest of international comity, that court should, as far as possible, limit the extraterritorial effects of its junctions concerning harm to private life and personality rights. The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person. Thus, instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking.
The CJEU's ultimate decision is to be expected with quite some anticipation. The questions raised by the Austrian Supreme Court are of far-reaching relevance. If the judges were to follow AG Szpunar in regard to the potentially global application of domestic injunctions, then the question of geo-blocking will indeed become virulent in order to end up with proportionate and balanced results in practice.