Facebook could be forced to delete defamation-related posts

The Court of Justice in Luxembourg has ruled that there are no EU rules that preclude an obligation for hosting providers such as Facebook to remove comments that are closely related to previous comments that have been declared illegal.

The EU Court ruling means that national courts in member states can force Facebook to delete comments that are identical to previous comments that have been found to be inappropriate. According to the judges, such a general obligation for hosting providers such as Facebook is contrary to the EU directive on e-commerce. A hosting provider is not liable for the information stored if the platform is not aware that the information is illegal and will promptly remove it once it is known. Although Facebook, for example, is not liable in such a case, according to the Court, it can be required to prevent that infringement. This can be done, for example, by removing the illegal messages or by making access to them impossible.

A hosting provider such as Facebook has to block access to the illegal information or delete that information in two situations: if it concerns information that is identical in content to information that was previously declared illegal, or if the information corresponds in content to information that was previously declared illegal. The EU rules also do not block an obligation to delete the intended information worldwide or to block access worldwide. With this ruling, the Court follows an earlier advice from Advocate General Maciej Szpunar.

The Court’s current ruling is the result of a lawsuit initiated by Austrian parliamentarian Eva Glawischnig-Piesczek. She took Facebook Ireland to Austrian court because she wanted to force Facebook to remove the statements posted on its platform that were offensive to Glawischnig-Piesczek. One user shared an article on Facebook advocating for the preservation of refugee benefits, calling the MP “corrupt”, saying she was a member of a “fascist party” and calling her a “worthless traitor to the people.” . The Austrian courts found that it was a comment that could discredit and insult Glawischnig-Piesczek. Moreover, these statements could be consulted by every Facebook user. However, the courts first wanted to know how the equally applicable EU rules should be interpreted in this light and whether they could make expulsion mandatory in such individual cases.