Content monitoring duties at centre of CJEU case

In an opinion issued earlier this month, advocate general Maciej Szpunar said that EU law provides scope for courts to impose "targeted" monitoring obligations on hosting providers. Those duties could extend to monitoring for "identical" content to that which has previously been deemed illegal as well as that which is "equivalent" in some circumstances, he said.

Szpunar issued his opinion in a case referred to the Court of Justice of the EU (CJEU) by a court in Austria where a politician has taken issue with comments made about her on Facebook.

The politician has argued that Facebook should remove both identical and equivalent comments posted about her which courts in Austria have determined are "excessively harmful" to her reputation, "gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard" and could not be justified under freedom of expression rights.

The Austrian Supreme Court has asked the CJEU to clarify the extent of monitoring obligations that can be placed on hosting providers.

Szpunar's opinion is non-binding on the CJEU which is expected to issue a formal judgment on the case later this year.

According to Szpunar, it would be incompatible with EU law to require hosts of online content to engage in general monitoring of their services for illegal content posted by their users. The imposition of a "general monitoring obligation" would compromise the neutrality of hosting providers, which is otherwise provided for in EU law, he said.

Szpunar said, though, that hosting providers can be required to observe "targeted" monitoring obligations so as to identify and remove content that has been identified previously by a court as being illegal.

In some cases, courts may also require hosting providers to monitor for "equivalent" content too, but Szpunar suggested that that duty could only be imposed in much more limited circumstances.

"A host provider may be ordered to seek and identify the information equivalent to that characterised as illegal only among the information disseminated by the user that disseminated that illegal information," Szpunar said. "A court adjudicating on the removal of such equivalent information must ensure that the effects of its injunction are clear, precise and foreseeable. In doing so, it must weigh up the fundamental rights involved and take account of the principle of proportionality."

In its referral, the Austrian Supreme Court has also asked the CJEU to rule on whether courts can order hosting providers to remove illegal content on a global basis and not just at a more localised level.

According to Szpunar, the EU's E-Commerce Directive "does not preclude" courts from issuing worldwide removal orders.

Frankfurt-based technology law specialist Dr. Nils Rauer of Pinsent Masons said that if the CJEU follows Szpunar's opinion on this part of the judgment, it could open the door to justified geo-blocking of content in future.

"The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person," Rauer said. "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."