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Financial Services Law Insights and Observations

EU Court of Justice: Orders to remove defamatory content issued by member state courts can be applied worldwide

Courts European Union Privacy/Cyber Risk & Data Security

Courts

On October 3, the European Court of Justice held that a social media company can be ordered to remove, worldwide, defamatory content previously declared to be unlawful “irrespective of who required the storage of that information.” The decision results from a 2016 challenge brought by a former Austrian politician against the social media company’s Ireland-based operation—responsible for users located outside of the U.S. and Canada—to remove defamatory posts and comments made about her on a user’s personal page that was accessible to any user. The social media company disabled access to the content after an Austrian court issued an interim order, which found the posts to be “harmful to her reputation,” and ordered the social media company to cease and desist “publishing and/or disseminating photographs” showing the former politician “if the accompanying text contained the assertions, verbatim and/or [used] words having an equivalent meaning as that of the comment” originally at issue. On appeal, the higher regional court upheld the order but determined that “the dissemination of allegations of equivalent content had to cease only as regards [to] those brought to the knowledge of the [social media company] by the [former politician] in the main proceedings, by third parties or otherwise.”

The Austrian Supreme Court of Justice requested that the EU Court of Justice adjudicate whether the cease and desist order may also be “extended to statements with identical wording and/or having equivalent content of which it is not aware” under Article 15(1) of Directive 2000/31 (commonly known as the “directive on electronic commerce”). Specifically, the EU Court of Justice considered (i) whether Directive 2000/31 generally precludes a host provider that has not “expeditiously removed illegal information”—including identically worded items of information—from removing content wordwide; (ii) if Directive 2000/31 does not preclude the host provider from its obligations, “does this also apply in each case for information with an equivalent meaning”; and (iii) does Directive 2000/31 also apply to “information with an equivalent meaning as soon as the operator has become aware of this circumstance.”

According to the judgment, Directive 2000/31 “does not preclude those injunction measures from producing effects worldwide,” holding that a national court within the member states may order host providers to remove posts it finds defamatory or illegal. However, the judges concluded that such an order must function “within the framework of the relevant international law.”

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