“Daphne’s Law”: The European Commission introduces an anti-SLAPP initiative

 

Professor Justin Borg-Barthet, University of Aberdeen*

*Advisor to a coalition of press freedom NGOs on the introduction of SLAPPs, co-author of the CASE Model Law, lead author of a study commissioned by the European Parliament, and member of the Commission's Expert Group on SLAPPs and its legislative sub-group

 

Background

 

When Daphne Caruana Galizia was assassinated in Malta on 16th October 2017, 48 defamation cases were pending against her in Maltese and other courts. Daphne was at the peak of her journalistic powers when she was killed, producing a seemingly endless exposé of criminality involving government and private sector actors. Naturally, those she was exposing did not take kindly to the intrusion on the enjoyment of the fruits of their labour. Courts which offered few meaningful safeguards against vexatious litigation presented a nominally legitimate forum in which they would seek to exhaust and punish Daphne and to ensure that others did not engage in similar investigations. Most of these cases were inherited by her sons, whose grief was interrupted constantly by a need to appear in court in defence of their mother’s work.

 

The scale of abusive litigation which Daphne endured prompted several NGOs to look more closely at the phenomenon of SLAPPs. Strategic Lawsuits Against Public Participation, a term coined in American academic circles, are lawsuits intended not to serve the legitimate purpose of pursuing a claim against a respondent, but instead to use court procedure to suppress scrutiny of matters of public interest. The direct costs, psychological strain, and opportunity costs of defending oneself in court are intended to coerce retraction of legitimate public interest activity, and to have a chilling effect on others who might show an interest. While most SLAPPs are framed as defamation claims, there is also a growing body of abusive litigation which suppresses public participation using the pretext of other rights such as privacy and intellectual property.

 

In response to the growing SLAPP phenomenon, several US States, Canadian provinces and Australian states and territories have introduced anti-SLAPP statutes. Typically, these statutes provide for the early dismissal of cases, and include cost-shifting measures to compensate SLAPP victims and to dissuade claimants. No EU Member State has yet adopted similar laws. Prompted by Daphne’s experience, European NGOs and MEPs became increasingly aware of the alarming incidence of SLAPPs throughout Europe. They then set out to identify and advocate for legal solutions in the European Union.

 

Initially, the European Commission resisted calls for the introduction of anti-SLAPP legislation, citing a lack of specific legal basis. As the legal and statistical research bases for NGO advocacy evolved further, and following a change in the Commission’s political leadership, the Commission’s assessment changed. This culminated in the introduction of a package of anti-SLAPP measures on 27th April 2022, including a proposed anti-SLAPP Directive which Vice-President Jourova dubbed “Daphne’s Law”.

 

The legislative proposal is based, in part, on a Model Law which was commissioned by the Coalition Against SLAPPs in Europe (CASE), a grouping of NGOs established to further the research basis and advocacy for anti-SLAPP laws in Europe. That Model Law is itself inspired by anti-SLAPP statutes adopted in the United States, Canada and Australia, but accounts for divergent continental legal traditions, and benefits from extensive consultation with experts and practitioners in Europe and elsewhere.

 

Legal Basis and Scope

As noted above, the key barrier for NGOs and MEPs to persuade the Commission to initiate anti-SLAPP legislation was disagreement about whether the EU had competence to act in this area. Subsequently, however, the Commission recognised the internal market relevance of SLAPPs, as well as adopting a more strident approach to the rule of law and human rights implications of SLAPPs. Arguments concerning a legal basis included an approach based on numerous treaty articles (as in the Whistleblowers’ Directive), reliance on the internal market effects of SLAPPs (Article 114 TFEU) as in the Model Law, and the potential use of treaty provisions on cross-border judicial cooperation. Ultimately, in view of Member States’ expected resistance to intervention in domestic procedural law, the Commission’s draft proceeds on the basis that Article 81 TFEU confers competence in respect of judicial cooperation in civil matters.

 

The orthodox view of Article 81 TFEU presupposes an international element to matters falling within its scope. It was therefore incumbent on the drafters to constrain the scope of the proposed directive to cases having a cross-border dimension. The Commission’s proposal begins with a classic private international law formulation which refers to the domicile of the parties. A case lacks cross-border implications if the parties are both domiciled in the Member State of the court seised. This, however, is subject to a far-reaching caveat in Article 4(2):

 

Where both parties to the proceedings are domiciled in the same Member State as the court seised, the matter shall also be considered to have cross-border implications if:

a)      the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

b)      the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

 

The Commission’s proposal adopts an innovative formulation, the breadth of which is commensurate to the internal market and EU governance implications of SLAPPs. Given the EU’s interconnectedness, it is paramount that the law account for the fact that cross-border implications do not flow only from the circumstances of the parties but also from transnational public interest in the underlying dispute.

 

The broad scope could be extended further if and when Member States come to transpose the proposed directive in national law. It is hoped, and indeed recommended as good practice, that Member States will take the view that national transposition measures will not be restricted to matters falling within the scope of the Directive but would apply also to purely domestic cases. This would avoid the prospect of reverse discrimination against SLAPP victims in domestic disputes. It would also minimise opportunistic litigation concerning the precise meaning of ‘[relevance] to more than one Member State’ in Article 4(2)(a).

 

Defining SLAPPs

Other than in the title and preamble, the proposed directive does not deploy the term ‘SLAPPs’. Discussions preceding the drafting process noted a number of difficulties associated with the term, not least (i) its unfamiliarity to a European legal audience, and (ii) the potential confusion resulting from the word ‘strategic’, which could be understood to require evidence of said strategy. In keeping with the Model Law, the Commission’s draft Directive deploys familiar language and focuses on the abusive nature of the proceedings. Rather than referring to SLAPPs, therefore, the text of the draft directive uses the term ‘abusive court proceedings against public participation’.

 

In identifying matters falling within the scope of the draft directive, it is first necessary to establish that a matter concerns ‘public participation’ on a matter of ‘public interest’. The Commission’s draft accounts for the fact that SLAPPs do not only target journalistic activity, but also seek to constrain legitimate action of civil society, NGOs, academics, and others. Public participation and public interest are therefore defined broadly as follows in Article 3:

 

‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and preparatory, supporting or assisting action directly linked thereto. This includes complaints, petitions, administrative or judicial claims and participation in public hearings;

‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

a)      public health, safety, the environment, climate or enjoyment of fundamental rights;

b)      activities of a person or entity in the public eye or of public interest;

c)       matters under public consideration or review by a legislative, executive, or judicial body, or any other public official proceedings;

d)      allegations of corruption, fraud or criminality;

e)      activities aimed to fight disinformation;

 

If a case concerns public participation in matters of public interest, it is then necessary to establish that the proceedings are abusive in accordance with the definition in Article 3:

‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be:

a)      the disproportionate, excessive or unreasonable nature of the claim or part thereof;

b)      the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

c)       intimidation, harassment or threats on the part of the claimant or his or her representatives.

 

There are therefore two key elements to the notion of abuse: (i) claims may be abusive because they are fully or partly unfounded, or (ii) they may be abusive because of vexatious tactics deployed by claimants. The implications of a finding of abusiveness will vary depending on the type of abuse identified in the proceedings, with more robust remedies available where the claim is manifestly unfounded in whole or in part.

 

Main legal mechanisms to combat SLAPPs

Once a court has established that proceedings constitute SLAPPs falling within the directive’s scope, three key remedies will be available to the respondent in the main proceedings: (i) the provision of security for costs and damages while proceedings are ongoing, (ii) the early dismissal of proceedings, and (iii) payment of costs and damages.

 

Speedy dismissal of claims is considered the cornerstone of anti-SLAPP legislation. Accelerated dismissal deprives the SLAPP claimant of the ability to extend the financial and psychological costs of proceedings to the detriment of the respondent. Early dismissal of cases must, of course, be granted only with great caution given it is arguable that this restricts the claimant’s fundamental right to access to courts. The solution provided in the draft directive is to restrict the availability of this remedy to claims which are manifestly unfounded in whole or in part. It is for the claimant in the main proceedings to show that their claim is not manifestly unfounded (Art 12).

 

Early dismissal is not available where the claim is not found to be manifestly unfounded, even if the its main purpose is ‘to prevent, restrict or penalize public participation’ (as evidenced by ‘(i) the disproportionate, excessive or unreasonable nature of the claim…the existence of multiple proceedings [or] intimidation, harassment or threats on the part of the claimant’). This differs from the Model Law which envisages early dismissal in cases which are not manifestly unfounded but which bear the hallmarks of abuse. The Model Law’s authors reasoned that a court should be empowered to dismiss a claim which is designed to abuse rather than vindicate rights. This would not, in our view, constitute a denial of the right to legitimate access to courts but would dissuade behaviour which is characterised as abusive in the Commission’s own draft instrument. While the Commission’s reasoning and caution are understandable, the high bar set by the requirement of manifest unfoundedness allows for significant continued abuse of process.

 

This shortcoming is mitigated somewhat by the other remedies, namely the provision of security pendente lite (Article 8) and liability for costs, penalties, and compensatory damages (Articles 14-16), which are available regardless of whether the SLAPP is manifestly unfounded or merely characterised by abuse of rights. These financial remedies are especially useful insofar as they give the respondent some comfort that they will be compensated for the loss endured through litigation. They are also expected to have a dissuasive effect on SLAPP claimants who would be especially loathe to the notion of rewarding the respondent whose legitimate exercise of freedom of expression they had sought to dissuade or punish. Nevertheless, it bears repeating that in all cases these remedies, designed to compensate harm, should supplement the principal remedy of early dismissal which is intended to prevent harm.

 

In addition to these main devices to dissuade the initiation of abusive proceedings against public participation, the draft directive includes a number of further procedural safeguards. These include restrictions on the ability to alter claims with a view to avoiding the award of costs (see Recital 24 and Article 6), as well as the right to third party intervention (Article 7) which will enable NGOs to submit amicus briefs in proceedings concerning public participation. While this may appear to be a minor innovation at first blush, it could have substantial positive implications insofar as it would equip more vulnerable respondents (and less expert courts) with valuable expertise and oversight.

 

London Calling: Private International Law Innovation

While the provisions discussed above would limit the attractiveness of SLAPPs in EU courts, there would remain a significant gap if EU law did not provide protection against the institution of SLAPPs in third countries. London, with its high litigation costs and somewhat claimant friendly defamation laws, is an especially attractive forum for claimants who wish to suppress public scrutiny. Equally, other States could be attractive to claimants who wish to circumvent EU anti-SLAPP law, whether simply as a function of the burden of transnational litigation, or because of the specific content of their substantive and/or procedural laws. The draft directive therefore proposes to introduce harmonised rules on the treatment of SLAPP litigation in third countries.

 

Article 17 provides that the recognition and enforcement of judgments from the courts of third countries should be refused on grounds of public policy if the proceedings bear the hallmarks of SLAPPs. While Member States were already empowered to refuse recognition and enforcement in such cases, the inclusion of this article ensures that protection against enforcement of judgments derived from vexatious proceedings is available in all Member States.

 

Article 18 provides a further innovation by establishing a new harmonised jurisdictional rule and substantive rights to damages in respect of SLAPPs in third countries. The provision confers jurisdiction on the courts of the Member State in which a SLAPP victim is domiciled regardless of the domicile of the claimant in the SLAPP proceedings. This would provide an especially robust defence against the misuse of third country courts and reduce the attractiveness of London and the United States as venues from which to spook journalists into silence.

 

While the limitation of forum shopping in respect of third countries is, of course, welcome, there does remain a significant flaw insofar as EU law and the Lugano Convention facilitate forum shopping within the European judicial area. The cumulative effect of EU private international law of defamation is to provide mischievous litigants with ample opportunity to deploy transnational litigation as a weapon to suppress freedom of expression. NGOs have therefore requested amendment of two EU private international law instruments:

 

In the first instance, and as a matter of urgency, the Brussels I Regulation (recast) requires amendment with a view to grounding jurisdiction in the domicile of the defendant in matters relating to defamation. This would remove the facility for pursuers to abuse their ability to choose a court or courts which have little connection to the dispute;

The omission of defamation from the scope of the Rome II Regulation requires journalists to apply the lowest standard of press freedom available in the laws which might be applied to a potential dispute. We recommend the inclusion of a new rule which would require the application of the law of the place to which a publication is directed;

 

These changes have not yet been forthcoming. It is hoped that ongoing reviews of these instruments will yield further good news for public participation in the EU.

 

Concluding remarks

Daphne’s Law will now have to be approved by the Council of Ministers and the European Parliament. The legislative process may see a Parliament seeking more robust measures pitted against Member States who may be inclined to protect their procedural autonomy. The Commission has considered these competing demands in its draft and sought to propose legislation which strikes a balance between divergent institutional stances. Nevertheless, it must be expected that the draft will be refined as it makes its way through the approval process. As noted above, the draft would be improved if those refinements were to include the extension of early dismissal to cases beyond the narrow confines of manifest unfoundedness. Equally, the draft directive should be viewed as a first welcome step in the pushback against SLAPPs in Europe and that reviews of private international law instruments will follow soon after.

 

Photo credit: ContinentalEurope, on Wikicommons

Facebook, defamation and free speech: a pending CJEU case

Preliminary Notes on the Pending Case Glawischnig-Piesczek v. Facebook Ireland Limited

Dr Paolo Cavaliere, University of Edinburgh Law School, paolo.cavaliere@ed.ac.uk

Introduction

In the next few months the Court of Justice of the European Union is expected to deliver a decision with the potential to become a landmark in the fields of political speech and intermediary liability (the Advocate-General’s opinion is due June 4). In fact the Court will have to render its opinion on two intertwining yet distinct questions: first, the case opens a new front in the delineation of platforms’ responsibility for removing illegal content, focusing on whether such obligations should extend to content identical, or even similar to other posts already declared unlawful. Secondly, the decisions will also determine whether such obligations could be imposed even beyond the territorial jurisdiction of the seised court. What is at stake is, in ultimate analysis, how much responsibility platforms should be given in making proactive assessments of the illegality of third-party content, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries.

Summary of the case

The plaintiff is a former Austrian MP and spokeswoman of the Green Party who – before retiring from politics – was reported as criticizing the Austrian Government’s stance on the refugee crisis in an article published by the news magazine oe24.at in April 2016. A Facebook user shared the article on her private profile along with her own comment, which included some derogatory language. In July, the plaintiff contacted Facebook and requested the post to be removed, only for the platform to decline the request as it did not find the post in breach of its own terms of use nor of domestic law. The plaintiff then filed an action for interim injunctive relief seeking removal of the original post, and of any other post on the platform with ‘analogous’ content. After the Commercial Court of Vienna found the post unlawful, Facebook proceeded to remove it.

However, the Court considered that Facebook, by failing to remove the original post on the plaintiff’s first notice, was not covered by the exemption from secondary liability and ordered the platform to remove any further post that would include the plaintiff’s picture alongside identical or ‘analogous’ comments. The Higher Regional Court of Vienna then found that such an obligation would amount to an obligation of general monitoring on Facebook’s part and removed the second part of the injunction, while upholding that the original post was manifestly unlawful and should have been removed by the platform following the first notification from the plaintiff. The Higher Court also confirmed that Facebook should remove any future posts that would include the same derogatory text alongside any image of the plaintiff. Facebook appealed this decision to the Austrian Supreme Court.

The Court referred to the CJEU two main ranges of questions:

- First, whether it would be compatible with Article 15(1) of the E-commerce Directive an obligation for host providers to remove posts that are ‘identically worded’ to other illegal content. In case of positive answer, the Court asks whether this obligation could expand beyond identical content and include content that is analogous in substance, despite a different wording. These are ultimately questions concerning the responsibility that platforms can be given in making their own assessment of what content amounts to unlawful speech, and what are the limits of “active monitoring”.

- Second, whether national courts can order platforms to remove content only within the national boundaries, or beyond (‘worldwide’). This is a question concerning the admissibility of extra-territorial injunctions for content removal.

Analogous content and active monitoring

To start with, it needs to be clarified that the dispute focuses effectively on a case of political speech, only formally concerns a case of defamation. The post on Facebook was considered by the Austrian court in breach of Art 1330 of the Austrian Civil Code, which protects individual reputation. However, the status of the plaintiff, who served as the spokeswoman of a national political party at the time, gives a different connotation to the issue. Established case-law of the European Court of Human Rights (Lingens v. Austria, 1986; Oberschlick v. Austria (no. 2), 1997) has repeatedly found that the definition of defamation in relation to politicians must be narrower than usual and the limits of acceptable criticism wider, especially when public statements susceptible of criticism are involved. In this case, the plaintiff had made public statements concerning her party’s immigration policy: the circumstance is relevant since the ECtHR traditionally identifies political speech with matters of public interest and requires interferences to be kept to a minimum. By established European standards the impugned content here amounts to political commentary, and the outcome of the case could inevitably set a new standard for the treatment of political speech online.

While intermediaries enjoy a series of immunities under the E-commerce Directive, which also notably established a prohibition for state authorities to impose general monitoring obligations, the 2011 Report of the Special Rapporteur to the General Assembly on the right to freedom of opinion and expression exercised through the Internet clarified that blocking and filtering measures are justified in principle when they specifically target categories of speech prohibited under international law, and the determination of the content to be blocked must be undertaken by a competent judicial authority. A judicial order determining the exact words (‘lousy traitor’, ‘corrupt oaf’, ‘fascist party’) may be an adequately precise guidance for platforms to operate, depending on how precise the contours of the order are.

To put the question in a context, the requirement to cancel ‘identical’ content marks the latest development in a growing trend to push platforms to take active decisions in content filtering. It cannot be neglected that the issue of unlawful content re-appearing, in identical or substantially equivalent forms, is in fact becoming increasingly worrisome. In a workshop held in 2017, delegates from the EU Commission heard from industry stakeholders that the problem of repeat infringers has become endemic to the point that, for those platforms that implement notice-and-takedown mechanisms, 95% of notices reported the same content to the same sites, at least in the context of intellectual property infringements. If rates of re-posting of content infringing other personality rights such as reputation can be considered anecdotally similar, then any attempts to clear platforms of unlawful content recall the proverbial endeavor of emptying the ocean with a spoon.

Nonetheless, the risk of overstepping the limits of desirable action is always looming. A paradigmatic example comes from early drafts of Germany’s Network Enforcement Law, which included a requirement for platforms to prevent re-uploads of same content already found unlawful – a provision that closely resembles the one at stake here. The requirement was expunged from the final version of the statute amid fears of over-blocking and concerns that automated filters would not be able, at the current state of technology, to correctly understand the nuances and context of content that is similar of equivalent at face value, such as irony or critical reference for instance.

The decision of the German law-makers to eventually drop the requirement – evidently considered a step too far even in the context of a statute already widely considered to hardly strike a suitable balance between platform responsibilities and freedom of expression – is indicative of the high stakes in the decision that the CJEU faces. A positive answer from the CJEU would mean a resurgence of this aborted provision on Europe-wide scale.

The idea of platforms’ monitoring of re-uploaded content is being gaining traction in digital industries for a little while now and is trickling down into content regulation. In the field of SEO, the concept of “duplicate content” defines content that has been copied or reused from other Web pages, sometimes for legitimate purposes (e.g. providing a mobile-friendly copy of a webpage), sometimes resulting in flagrant plagiarism. Yet definitions diverge when it comes to the criteria considered: while duplicate content is most commonly defined as ‘identical or virtually identical to content found elsewhere on the web’, Google stretches the boundaries to encompass content that is ‘appreciably similar’. Content regulation simply cannot afford the same degree of flexibility in defining ‘identically worded’ content, as the criterion of judicial determination required by the Special Rapporteur and the prohibition of general monitoring obligations in the E-commerce Directive exclude it.

In the area of copyright protection, it is in principle possible for service providers like YouTube to automatically scan content uploaded by private users and compare it to a database of protected works provided by rights-holders. In the case of speech infringing personality rights and other content-based limitations, discourse analysis is necessary to understand the context, and this kind of task would evidently amount to a private intermediary making a new determination on the legality of the speech.

The assessment of what amounts to unlawful speech rarely depends on the sole wording; context plays a fundamental role in the assessment, and that is all but a straightforward exercise. The European Court of Human Rights’ case-law includes several examples of complex evaluations of the local circumstances to determine whether or not an interference with speech would be justified.

For instance, in the case of Le Pen v. France (2010), the Court considered that comments, that could seem at face value derogatory towards a minority, needed anyway to be considered in the context of an ongoing general debate within the Country, and stressed that the domestic courts should be responsible for assessing the breadth and terms of the national debate and how to take it into account when determining the necessity of the interference. In Ibragimov v. Russia (2018), the Court noted that the notion of attack on religious convictions can change significantly from place to place as no single standard exists at the European level and, similar to political debates in societies, domestic authorities are again best placed to ascertain the boundaries of criticism of religions ‘[b]y reason of their direct and continuous contact with the vital forces of their countries’. The historical context is consistently taken into account to determine whether a pressing social needs exist for a restriction, and is enough to justify different decisions in respect to speech that otherwise appears strikingly similar.

For instance, outlawing Holocaust denial can be a legitimate interference in countries where historical legacies justify proactive measures taken in an effort to atone for their responsibility in mass atrocities (see Witzsch v. Germany (no. 1), 1999; Schimanek v. Austria, 2000; Garaudy v. France, 2003); whereas a similar statute prohibiting the denial of the Armenian genocide would be an excessive measure in a country like Switzerland with no strong links with the events in 1915’s Ottoman Empire (Perinçek v. Switzerland, 2015).

The intricacies of analysing the use of language against a specific historical and societal context are perhaps best illustrated by the Court’s minute analysis in Dink v. Turkey (2010). The Court was confronted with expressions that could very closely resemble hate speech: language such as ‘the purified blood that will replace the blood poisoned by the “Turk” can be found in the noble vein linking Armenians to Armenia’, and references to the Armenian origins of Atatürk’s adoptive daughter, were included in articles written by the late Turkish journalist of Armenian origin Fırat Dink.   The Court eventually came to the conclusion that it was not Turkish blood that Dink referred to as poison, but rather attitudes of the Armenian diaspora’s campaign which he intended to criticise. The Court built extensively on the assessment made by the Principal State Counsel at the Turkish Court of Cassation – who analysed all Dink’s articles published between 2003 and 2004 – in order to be able to ascertain whether these expressions amounted to denigrating Turkishness, and in what ways references to blood and the origins of Atatürk’s daughter amounted to sensitive subjects in Turkish ultranationalist circles and were susceptible to ignite animosity.

Not only social and political context matters, often it is precisely the use of language in a culturally specific way that forms a fundamental part of the Court’s assessment, with the conclusion that words alone have little importance and it is instead their use in specific contexts that determines whether or not they cross the boundaries of lawful speech. In Leroy v. France (2008), the Court went to great lengths in evaluating the use of the first person plural “We” and a parodistic quote of an advertising slogan to establish that a cartoon mocking the 9/11 attacks amounted to hate speech.  

Beyond the Court’s experience, examples of words that, though otherwise innocuous, can become slurs if used in a certain context abound: for instance, the term ‘shiptari’ in Southern Slavic-speaking countries to indicate Albanians especially in Serbia acquires a particularly nasty connotation as it was often used by Slobodan Milošević to show contempt of the Albanian minority in Yugoslavia. In Greece, the term lathrometanastes (literally ‘illegal immigrants’) has been appropriated and weaponised by the alt-right rhetoric to purposefully misrepresent the legal status of asylum seekers and refugees in an attempt to deny them access to protection and other entitlements, and now arguably lies outside of the scope of legitimate political debate,[1] to the point that it has been included in specialised research on indicators of intolerant discourse in European countries.

This handful of examples shows how language needs to be understood in the context of historical events and social dynamics, and can often convey a sense beyond their apparent meaning. While for domestic and supranational courts this seems challenging enough already, the suggestion that it would suffice for platforms to just check for synonyms and turns of phrases in a mechanical fashion is simplistic at best.

Extraterritorial injunctions

This plain observation calls into question whether it would be appropriate for the CJEU to answer in the positive the question on extra-territorial injunction. The Austrian Court’s order is in fact addressed towards an entity based outside the Court’s territorial jurisdiction and the order sought is to operate beyond the Austrian territory. To clarify, the novelty here resides not on the seising of Austrian courts, but rather on the expansive effect of their decision; the question concerns whether it would be appropriate for the effects of the injunction sought to extend beyond the limits of the national jurisdiction and effectively remove content from Facebook at the global level.

The Court of Justice has already interpreted jurisdiction in a similarly expansive way on a few occasions. In L’Oréal v. eBay (2011) the Court decided to apply EU trade-mark law on the basis that trade-mark protected goods were offered for sale from locations outside the EU but targeted at consumers within the EU. In Google Spain (2014), the Court decided to apply EU data protection law to the processing of a European Union citizen’s personal data carried out ‘in the context of the activities’ of an EU establishment even if the processor was based in a third country. The Court considered that delimiting the geographical scope of de-listings would prove unsatisfactory to protect the rights of the data subjects. A similar reasoning was the basis for deciding in Schrems (2015) that EU data protection law should apply to the transfer of personal data to the US.

One common element emerges from the case-law of the Court of Justice so far, in that the extraterritorial reach of court orders seems to be a necessary measure to ensure the effectiveness of EU rules and the protection of citizens’ or businesses’ rights. The Court has been prepared to grant extraterritorial reach when fundamental rights of European Union citizens were at stake (for instance in the context of processing of personal data) or when, in case of territorially protected rights such as trade marks, a conduct happening abroad was directly challenging the protected right within the domestic jurisdiction. It is dubious that the case at stake resembles either of these circumstances; in fact limiting political speech requires a different analysis.

A politician certainly is entitled to protect their own reputation, however when the criticism encompasses aspect of an ongoing public debate, the limits of acceptable speech broaden considerably: whether the speech falls within, and contributes to, an ongoing social conversation is very much a factual and localised consideration. Conversations that are irrelevant or even offensive within one national public sphere could very well be of the utmost relevance to communities based elsewhere, especially minorities or diasporas, who could find themselves deprived of their fundamental right to access information.

The CJEU has traditionally paid attention to connecting factors justifying extraterritorial orders. Following its own jurisprudence, it will now be faced with the challenge of identifying a possible connecting element to justify a worldwide effect of the Austrian Court’s local assessment. It needs to be recalled that a fundamental tenet of L’Oréal is the principle that the mere accessibility of a website is not enough a reason to conclude that a jurisdiction is being targeted, and it is for national courts to make the assessment. With the exception of the ECtHR that applies to date one of the most expansive jurisdictional approaches (Perrin, 2005), international policy-makers (such as for instance the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information’s Joint Declaration on Freedom of Expression and the Internet of 2011, among others) and most courts favour a different approach inspired to judicial self-restrain, and put emphasis on a ‘real and substantial connection’ to justify jurisdiction over Internet content.

When personality rights are at stake, the recent CJEU decision in Bolagsupplysningen of 2017 (incidentally, derogating from the more established CJEU decisions in Shevill, 1995, and eDate, 2011) suggested that, when incorrect online information infringes personality rights, applications for rectification and/or removal are to be considered single and indivisible, and a court with jurisdiction can rule on the entirety of an application.

However, this precedent (already controversial in its own right) seems unfit to apply to this case. Bolagsupplysningen builds at least on the same rationale as in the other decisions of the CJEU mentioned above, that expansive jurisdiction can be justified by the necessity to guarantee the protection of citizens’ fundamental rights and not to see them frustrated by a scattered territorial application. In the case of political speech, where limitations need to be justified by an overriding public interest, such as typically public safety, the connecting element the Court looks for becomes immediately less apparent, as it cannot be assumed that the same speech would prove equally inflammatory in different places under different social and political circumstances. In other words, public order better lends itself to territorially sensitive protection.     

This taps into the assessment of the necessity and proportionality of the measure that decision-makers need to make before removing content. As a matter of principle, the geographical scope of limitations is part of the least restrictive means test: the ECtHR for instance in Christians Against Fascism and Racism (1980) considered that even when security considerations would outweigh the disadvantage of suppressing speech and thus justify the issue of a ban, said ban would still need a ‘narrow circumscription of its scope in terms of territorial application’ to limit its negative side effects.  Similarly, the 2010 OSCE/ODIHR – Venice Commission Guidelines on Freedom of Peaceful Assembly (as quoted by the ECtHR in Lashmankin v. Russia of 2017) consider that ‘[b]lanket restrictions such as a ban on assemblies in specified locations are in principle problematic since they are not in line with the principle of proportionality which requires that the least intrusive means’, and thus restrictions on locations of public assemblies need to be weighed against the specific circumstances of each case. Translated in the context of digital communications, the principle requires that the territorial scope of content removal orders is narrowly circumscribed and strictly proportionate to the interest protected. An injunction to remove commentary on national politics worldwide, as a result, seems unlikely to be considered the least intrusive means.

Conclusions

The decision of the CJEU has the potential to change the landscape of intermediary responsibility and the boundaries of lawful speech as we know them. By being asked to remove content that is identical or analogous, intermediaries will be making, in all other cases other than removing mere copies of posts that have already been found illegal, active determinations on the legality of third-party content. While the re-upload of illegal content is an issue of growing importance that needs to be addressed, consideration needs to be paid as to whether this would be an appropriate measure, as solutions borrowed from other fields like copyright protection can sit at odds with the specificities of content regulation and infringe on European and international standards for the protection of freedom of expression online.

Similarly, by granting an extraterritorial injunction in this case the Court would follow a stream that has been emerging in the last few years in privacy and data protection. Thanks to extraterritorial reach, the GDPR is rapidly becoming a global regulatory benchmark for the processing of personal data, which arguably benefits European Union citizens and protects their relevant fundamental rights. The same could not be true if this rationale would be applied to standards of legitimate political speech. It is questionable whether the EU (or any other jurisdiction) bears any interest in setting a global regulatory benchmark for content regulation. By restricting the accessibility of content beyond the national boundaries where the original dispute took place, it would restrict other citizens’ right to receive information without granting any substantive benefit, such as protecting public security, to the citizens of the first state.

Barnard & Peers: chapter 9

Photo credit: Slate magazine

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[1] L. Karamanidou (2016) ‘Violence against migrants in Greece: beyond the Golden Dawn’, Ethnic and Racial Studies, 39:11, 2002-2021; D. Skleparis (2016) ‘(In)securitization and illiberal practices on the fringe of the EU’, European Security, 25:1, 92-111.

Civil liability for Internet publishing: the CJEU clarifies the law

Professor Lorna Woods, co-author of Steiner & Woods, EU Law

Introduction

Yesterday’s CJEU judgment in Papasavvas is the most recent in a line of cases seeking to trace the edges of the concept of ‘intermediary’ for the purposes of EU information technology law, a question that has become rather more problematic than when the eCommerce Directive was first drafted in 2000. Then, the role of intermediaries was much more technical and related to transmission and technical access. Since then the market has moved on with the development of many services that are now viewed as important for the access and use of content on the Internet. Many of these services blur the boundaries between transmission services and content services. To what extent are those services neutral intermediaries? While in many respects this case could be seen as quite straightforward, it hints at still yet unresolved questions and highlights difficulties about reliance on EU law in national courts.

Facts

Mr Papasavvas (‘P’) brought an action for defamation in respect of articles published in the daily national newspaper O Fileleftheros, on 7 November 2010, which were published online on two websites. He sought damages and an injunction. The national court referred the following questions:

(1)      Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31 …?

(2)      If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31 …, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?

(3)      Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31 … relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?

(4)      Do the definitions of “information society service” and “service provider” in Article 2 of Directive 2000/31 … and Article 1(2) of Directive 98/34 … cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?

(5)      Bearing in mind the definition of “information service provider”, laid down in Article 2 of Directive 2000/31/EC and Article 1(2) of Directive 98/34 … could the following, or any of them, be regarded as a “mere conduit” or “caching” or “hosting” for the purposes of Articles 12, 13 and 14 of Directive 2000/31:

(a)      a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;

(b)      an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper’s staff and/or freelance journalists;

(c)      a website which provides (a) or (b) above for a subscription?’

Judgment

The Court dealt first with queries raised regarding admissibility.  P raised questions about timing: the proceedings at national level are at an early stage, to the point that the defendants in the national action have not yet filed a defence.  On this basis, P argued that the questions referred must be hypothetical as the nature of the dispute had not yet been defined. The Court did not address this argument directly but instead stated that ‘the description of the legal and factual framework of the proceedings in the order for reference seems to suffice so as to permit the Court to make a ruling’. 

P had also argued that the defendants did not fall within the scope of the e-Commerce directive and therefore questions relating to its interpretation were unnecessary. This is of course a little circular and the Court rejected the argument, pointing out that the scope of the Directive and the applicability to the defendants was one of the main issues that needed to be resolved. Having determined that, the Court re-ordered the questions referred and started with question 4 on the application of the Directive.

The Court reformulated the question, asking whether ‘information society services’ (ISS) as defined in the directive ‘covers the provision of online information services for which the service provider is remunerated not by the recipient, but by income generated by advertisements posted on a website (para 26).’ The Court re-iterated that the definition of ISS has four elements:

·         ‘normally provided for remuneration’;

·         at a distance;

·         by electronic means; and

·         at the individual request of a recipient of services.

The final three seemed non-contentious, but what concerned the national court was the issue of remuneration, as the user did not pay to access the website.  The Court then referred to recital 18 of the Directive, which expressly excludes the possibility that a service will fall outside the directive merely because payment is indirect.  In this there is a similarity to the CJEU’s reasoning in Bond van Adverteerders and Others (paragraph 16).

Having determined that the directive could apply to information services such as those in issue here, the Court then considered question 1 in which the referring court is effectively asking whether the directive precludes the application of rules of civil liability for defamation to ISS providers.  The directive applies the principle of home country rule to service providers, with the corollary that Member States should not impose additional rules on services coming from other Member States.  Given that the defendants in the domestic proceedings were based in the same Member State as P, the issue of whether the civil defamation rules constituted a restriction did not apply, though the Court noted that such rules fall within the scope of the directive (at Article 2(h)).

The Court then went on to consider whether the defendants could benefit from the intermediary immunity provisions in Articles 12-14 of the Directive. The Court considered the role of these provisions, and relying on its reasoning in Google France and Google  (paragraph 113) and L’Oréal and Others (paragraph 113) stated that they applied to intermediaries and activities which are of ‘a merely technical, automatic and passive nature’, that the ISS provider has neither knowledge of nor control over the information which is transmitted or stored and takes a neutral approach to content. The Court highlighted factors such as assisting clients in drafting commercial messages, or in optimising presentation of content.  It concluded:

Consequently, since a newspaper publishing company which posts an online version of a newspaper on its website has, in principle, knowledge about the information which it posts and exercises control over that information, it cannot be considered to be an ‘intermediary service provider’ within the meaning of Articles 12 to 14 of Directive 2000/31, whether or not access to that website is free of charge. [45]

So, in such a circumstance, a newspaper cannot claim exemption from civil liability.  Given this answer, it was not apparent that the Court needed to address question (2). Nonetheless, it confirmed that it made no difference whether the case involved business to consumer or consumer to consumer cases. [50]

The final issues dealt with were those raised by question (3), though again the Court noted that answers to this question might not be necessary given that Articles 12-14 did not apply.  The Court summarised this question as asking whether Articles 12-14 preclude the adoption of interim measures (such as the injunction prohibiting publication) or whether those articles create individual rights which the ISS provider may plead as defences in law in the context of legal proceedings such as those in the main proceedings. As regards the first element, the Court noted that – subject to the principles of equivalence and effectiveness, matters as to conditions under which remedies might be available were matters for national law. [53]

The second element effectively concerns the direct effect of the immunity provisions: can they be relied on in the context of a dispute between private parties. The Court returned to the general case law on horizontal direct effect of directives, arguing that ‘with regard to proceedings between individuals, such as those at issue in the main proceedings, the Court has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual’ [54] but that indirect effect/doctrine of consistent interpretation from Von Colson would apply. [56]

Comment

While this case at the headline level came to the right answer - people who write or (first) publish content on the Internet are not intermediaries - the case raises a couple of issues worth pondering further.

First off, there was no Advocate-General’s opinion.  Querying this might seem churlish, given that I’ve just said the Court got to the right answer, and on the facts the judgment is a straightforward application of the Court’s existing law on Articles 12-14 in Google and L’Oreal.  It is, however, a sensitive area: currently a case, Delphi, concerning a news site and the self-same provisions is awaiting a judgment from the Grand Chamber of the European Court of Human Rights on whether there was a breach of freedom of expression in finding the journalists liable for defamation (see the Chamber judgment here).  While there is a crucial factual difference between the two cases (Delphi concerns liability for user generated content, not journalism), it is noteworthy that although Recital 9 recognises the significance of ISS for freedom of expression, Papsavvas did not even consider whether there was a freedom of expression argument in issue.

To some extent most of the questions referred by the national court seem to reflect a lack of familiarity with the internal market system generally. So, the application of the rules in this case might seem straightforward, but they might not always be so.  While it should come as no surprise that national rules imposing civil liability on a service ‘import’ could be a restriction, nor that ‘home’ regulation should not be circumvented by reliance on provisions aimed at cross-border services, the determination of the place of establishment may in itself be problematic, as cases on cross-border television services have shown.  The eCommerce Directive seems to refer to the Court’s general case law on this point (Article 2(c), Recital 19): the Court accept the establishment point as proven here in Papasavvas. 

There is a risk of forum shopping and, by contrast to the Audiovisual Media Services Directive (which deals with television), the eCommerce Directive has no ‘anti-abuse’ clause, although Member States may derogate on limited grounds (article 3(4), Recital 24). In this case, the Court did not address the question of whether rules relating to defamation could be seen as being justified under the protection of human dignity in Article 3(4)(a)(i).  Of course, a system which allows or even encourages delocalisation to another Member State has the consequence of adversely affecting would be plaintiffs under the national rules, especially private persons and small businesses. Even in rules of conflicts allow action in the injured party’s home state, there may be questions as to applicable law in the light of the home country regulatory principle (see eDate and Martinez). So, while the eCommerce Directive claimed not to affect rules on conflicts of law (Article 1(4)), there is an interrelationship there and one which may affect the effectiveness of remedies for users. 

Similarly, and as the Court itself noted, remuneration has typically been widely interpreted.  The Court referred to Bond van Adverteerders, a case concerning free-to-air commercial television – a set-up which has clear parallels with free to user internet services.  In its case law on Article 56 TFEU (freedom to provide services), the Court has gone further, even suggesting (in Deliege) that an amateur judoka was remunerated because she took part in competitions which carried advertising and which were televised.  Essentially the Court seemed to be saying, ‘there’s money there somewhere….’. Of course, there will be hard questions in some cases- ‘amateur’ content available freely: is that an ISS, and does the answer to the question change if the platform carries advertising entirely separately? In Delphi, it was the user generated content that was problematic. This question did not arise, however, as it was the underlying website that was sued, and it clearly was a commercial entity for the same reason that the newspaper in Papasavvas was.

Perhaps the interesting questions are those which deal with the interface between the immunity provisions and national law.  The purpose of these provisions is to encourage the development of the digital environment, particularly cross border services (recital 40). It should therefore make no difference if the service the intermediary carries is between businesses, or business to consumer, as indeed the Court ruled. The national court also questioned whether injunctions were permissible. The Court handed this one off to national procedural autonomy, but it is arguable that the terms of the directive suggest that injunctions are in principle permissible: each of the intermediary exceptions state that the exemption from liability does not affect the possibility of the Member State’s legal system requiring the intermediary to terminate the offending activity.

Finally, we come to the question of whether intermediaries can rely on the exemption directly before national courts: in effect, do these provisions have horizontal direct effect? The Court dealt with this by returning to basic principles precluding such an effect, but in doing so it argued that Union law precludes the imposition of an obligation on an individual. Of course, in this case the directive is not imposing an obligation on an individual but rather removing it. In this sense, although for different reasons, the position is closer to that in cases such as CIA Security International or even Wells, where a national obligation is disapplied. This area of law is problematic generally. Suffice it to note here that this approach knocks a potentially large hole in the protection of intermediaries if the Member State has not implemented, or not implemented correctly, indirect effect notwithstanding.

Barnard & Peers: chapter 6, chapter 14