Opinion of Advocate General Szpunar, Eva Glawischnig-Piesczek v. Facebook Ireland Limited, Case C‑18/18, CJEU (Third Chamber), 4 June 2019

Role of hosting platforms in countering hate speech.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce)

The identification and removal of information disseminated via a social network platform “equivalent” to the one qualified as defamatory – which originate not only from the user charged with defamation, but also from other users – cannot be carried out unless a host provider employs sophisticated solutions. In this case, the role of a service provider is not merely technical, automatic and passive. By selecting contents, the service provider becomes an active contributor to that platform and it exercises a form of censorship, so the freedom of expression and information might be systematically restricted. In the light of the above, Article 15, para. 1 of the Directive 2000/31 must be interpreted as meaning that it does not preclude a host provider operating a social network platform from being ordered, in the context of an injunction, to identify and remove the information “identical” or “equivalent” to the information that was characterised as illegal by the court that has issued the injunction. However, in the case of “equivalent” information, the removal may be ordered only among the information disseminated by the user who disseminated the original defamatory act. A court adjudicating on the removal of such equivalent information must ensure that the effects of its injunction are clear, precise and foreseeable. In any case, the user should have the possibility of challenging before a court the implementing measures adopted by a host provider in order to comply with an injunction. (Preliminary ruling concerning the interpretation of Article 15 para. 1 of Directive 2000/31/EC).