European Rules on Intermediary Liability Need a Facelift
By Zsuzsa Detrekői
A newly released opinion from a European Court of Justice advocate about how liable for their users’ content social media should be signals that an overhaul of EU’s rules on intermediary liability is long overdue.
“The internet’s not written in pencil, it’s written in ink.” The quote, from the movie The Social Network, which tells the story of Facebook from its early days to the juggernaut that it became in less than a decade, is how Maciej Szpunar, advocate general at the EU Court of Justice (CJEU), opened his opinion, delivered last month, on a case of the Austrian Supreme Court that involved Facebook.
The case originated in Austria where Eva Glawischnig-Piesczek, an Austrian politician from the Green Party, sought a court order aimed at forcing Facebook to remove a disparaging comment made about her by a Facebook user.
Back in April 2016, a user of the social network shared on his personal page an article from the Austrian online news magazine oe24.at titled “Greens: Minimum income for refugees should stay.” The post generated a thumbnail of the original web page consisting of the title and a brief summary of the article, as well as a photograph of Ms Glawischnig-Piesczek. The user also published comments, which were related to the article, accusing Ms Glawischnig-Piesczek of being a “lousy traitor of the people,” a “corrupt oaf” and a member of a “fascist party.” A local court in Austria found the post defamatory and ordered Facebook to remove it.
Policing Criminal Content
According to EU e-commerce directive, Facebook Ireland, the social network’s main business vehicle covering Europe, is an intermediary service provider and qualifies as a host provider. As such it’s not liable for the information stored on its platform provided that it does actually know that such information is not illegal. If it does, it is Facebook’s obligation to bin the content. The reason why a hosting provider such as Facebook is not held liable for the information posted on its platform is the sheer amount of content generated by its users, which makes it impracticable, if not impossible, for the provider to control.
In the Glawischnig-Piesczek case, the Austrian court asked CJEU to specify the personal and material scope of the obligations that may be imposed on a host provider that does not have general monitoring obligations. In legal lingo, that means that the Austrian court wanted to know to what extent networks like Facebook can be held liable for content circulated on their platforms.
In his opinion to CJEU, Mr Szpunar stated that EU’s legal provisions limiting the liability of intermediaries
“do not preclude a host provider operating a social network platform from being ordered, in the context of an injunction, to seek and identify, among all the information disseminated by users of that platform, the information identical to the information that was characterized as illegal by a court that has issued that injunction.”
Mr Szpunar added that in the context of such an injunction,
“a host provider may be ordered to seek and identify the information equivalent to that characterized as illegal only among the information disseminated by the user who disseminated that illegal information.”
Consequently, in an attempt to prevent any further infringements, social network operators may be ordered, in the context of an injunction, to remove illegal information, which has not yet been disseminated at the time when that injunction is adopted.
In short, all this means that, when cases such as Glawischnig-Piesczek arise, social network operators that diligently scour their platforms for what is deemed to be illegal information are not liable for what their users publish. They have to look only for content posted by an incriminated user.
Legally Confounded?
Intermediary liability has been recently challenged in the EU on more than one occasion.
On the one hand, the revised Audiovisual Media Services Directive (AVMSD), adopted by the EU last year, requires video-sharing providers that also qualify as host providers to protect minors from user-generated videos that may impair their physical, mental or moral development and to protect the general public from user-generated videos containing incitement to violence or hatred.
According to the directive, video-sharing platforms should introduce certain measures to prevent availability of such content. However, ex ante control or upload filtering is not approved by AVMSD.
On the other hand, a newly adopted amendment of the copyright directive explicitly excludes immunity of host providers, stating that online content sharing service providers perform an act of communication to the public and therefore are responsible for their content, including the content generated by the users. It requires video sharing providers to control uploads of user-generated content following a check-up that includes clearing of copyrights.
The CJEU advocate’s opinion now further shakes the foundation of the institution of host provider’s immunity in the EU. At the moment, host providers are subject to inconsistent legal obligations, depending in which category they fall (video-sharing providers, online content sharing service providers, social network operators) and the law (ex post control required by the AVMSD, ex ante control required by the copyright directive).
Revamping the institution of host provider’s immunity is urgently needed to prevent legal uncertainty from further escalating.
Zsuzsa Detrekői is a TMT lawyer and the former general counsel of a major Hungarian online content provider. Currently she is legal counsel of a major ISP in Hungary. She also provides legal support for the Association of Hungarian Content Providers. Her research area is online content and internet related regulations about what she wrote her thesis on and achieved PhD in 2016. She is a Fellow at the Center for Media, Data and Society.
