Material, Personal and Geographic Scope of Online Intermediaries’ Removal Obligations beyond Glawischnig-Piesczek, C-18/18 and Defamation
European Intellectual Property Review (Forthcoming)
19 Pages Posted: 20 Aug 2019
Date Written: August 16, 2019
In Glawischnig-Piesczek, C-18/18, the CJEU has been asked to provide guidance on the breadth and scope of Article 15 of the E-commerce Directive, and thereby address the removal obligations of an online intermediary (eligible for the hosting safe harbour) as arising from an injunction obtained against it. In his Opinion, AG Szpunar advised that Article 15 does not prohibit a court from ordering an intermediary to seek out and remove all content identical to that found illegal in relation to all users of its platform, as well as content equivalent to that found illegal, though the latter only in relation to the original user/poster. Equivalent information disseminated by other users should be removed when an intermediary becomes aware of it through a notification made by the concerned person, third parties or another source (as Article 14 of the E-commerce Directive in any event envisions). The Opinion also submits that, in principle, a court or authority considering an application for an injunction based on an unharmonized national right might order removal worldwide.
Like AG Szpunar’s Opinion, this contribution submits that national courts or authorities should undertake a close scrutiny when issuing injunctions against intermediaries, envisage time limitations for them, and monitor their effects. This said, the approach recommended in relation to the material and personal scope of removal obligations might be hardly workable in practice without also entailing a general monitoring obligation on the side of the relevant intermediary. In any case, it should be possible for the subject who posted the original information found illegal, users of the services provided by the intermediary targeted by the injunction, and the intermediary alike to intervene to vary or discharge the order issued. In addition, the potential availability of worldwide injunctions based on unharmonized rights – as envisaged in the Opinion – is problematic, also from a policy standpoint. As such, it should be considered extrema ratio.
Keywords: online intermediaries, injunctions, safe harbours, Facebook, Glawischnig-Piesczek, C-18/18, defamation, AG Szpunar, removal obligations, removal worldwide, identical and equivalent content
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