Get rid of that libellous post and while you are at it anything else with an equivalent meaning!

Does Facebook, or other social media platforms, have an obligation not just to delete defamatory posts, but other posts with an equivalent meaning?

This was a question that the European Court of Justice (the “CJEU”) recently considered.

Facts 

A Facebook user shared an article about an Austrian Green Party politician and posted a comment, which was defamatory on Facebook.

The politician requested Facebook remove the post on the basis it was defamatory, but Facebook refused. As a result of Facebook’s refusal, the politician commenced proceedings in Austria and obtained an injunction against Facebook requiring it to:

1. remove the defamatory post
2. remove identical posts (even if posted by different users)
3. remove posts with an equivalent meaning

The case eventually made its way up to the Austrian Supreme Court, who asked the CJEU for guidance on whether the terms of the injunction complied with EU law and in particular the E-Commerce Directive, which does not require social media platforms to monitor user content.

The Austrian Supreme Court also asked the CJEU for guidance on whether the injunction could be granted worldwide.

Decision

In a relatively short decision, the CJEU confirmed that the terms of the injunction were acceptable and not contrary to the E-Commerce Directive.  The CJEU also provided the following guidance on the meaning of equivalent content: content essentially conveying the same message as the defamatory content, but is worded slightly differently.

The CJEU also found that the injunction could be granted worldwide provided that the national court, who grants the injunction, complies with any applicable international laws.

Comment

In summary, this decision requires social media platforms not just to remove defamatory content, but also content with an equivalent meaning and, potentially, on a worldwide basis.

However, this does not equate to an obligation on social media platforms to monitor content.  This is made clear by three points made by the CJEU in its decision.  The first is that content with an ‘equivalent content’ has to be defined by the claimant in the injunction.  In other words, it is not the social media platform’s job to determine what is equivalent content that must instead be set out in the terms of the injunction by the claimant and approved by the court.  The second is the definition of equivalent content is restricted by the fact it can only be ‘worded slightly differently’ from the defamatory content.

The third is that the definition of equivalent content in the order cannot stretch to the extent the social media platform has to carry out an independent assessment of content.  This provides the social media platform with a mechanism to push back, if it believes the definition of equivalent content is too broad and thus leads to it having to carrying out a monitoring exercise.

Ramsay Monime, Solicitor