Author: Blaž Slavec, associate al Law firm Miro Senica and attorneys

Published in: Svet Kapitala, November 24, 2019 issued by Delo d.o.o.

 

Today, almost every individual is part of one or more social networks; only on Facebook, a third of the world’s population is active.

On one hand, social networks have facilitated communication, networking and news reporting, but on the other hand, they have enabled the rapid spread of hate speech, misinformation – so-called “fake news”, various forms of intimidation of individuals, and many times, with various intrusions, they have enabled the disclosure of personal and intimate details from people’s lives.

Through social networks, attempts to inadmissibly influence the election results in various countries have repeatedly been made. Regarding this, last year Facebook acknowledged that the widespread use of social networks could significantly break the foundations of democratic social systems.

Social networking administrators of course do not want to be held accountable for the actions of their users. They also try to avoid any active role in detecting and removing illegal content, as appropriate controls that the administrator could undoubtedly exercise, cost a lot. Regarding this, the legislators who wish to limit such bad and inadmissible influences of users, don’t have an easy job regulating the relevant legal matter.

Looking at European Union legislation, the 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), does not require social media administrators to directly detect and remove illegal content, they must take action only in the case if they learn about these content or activity.

In such a case, they must immediately remove or disable access to fraudulent content or prevent illegal use of intellectual property. The same is stipulated also in Article 11 of the Slovenian Electronic Commerce Act, although at the same time the EU e-commerce directive prohibited Member States from adopting legislation requiring social networks to have a general obligation to control data when transferring or storing it and actively researching the circumstances of the illegal activity, which means Member States are considerably limited in regulating this area.

Given the fact that more and more users are using social networks as their primary source of information, they are even more exposed to this issue. Because of this, the case law put in place in early October by the EU court in its judgment in the case Eva Glawischnig-Piesczek v. Facebook Ireland Limited, is crucial. In the case the reach and understanding of the e-commerce directive was significantly expanded. The Court held, inter alia, that the e-commerce directive must be interpreted in such a way that the court of a Member State may impose on a the  social networking hosts the obligation to delete or block access to content which it retains and content of which was previously identified as illegal or can under certain conditions be equivalent to illegal.

In practice, this means that an individual may, before the court of the country in which he or she lives, request not only the removal of a post on a social network that violates his or her personal rights, but may also require the removal of the equivalent or similar post(s).

In addition, the individual may require that the publications in question be removed in such a way that they are not accessible anywhere in the world and not only in the Member State where adequate judicial protection has been granted.

It is important that the posts wihich have equivalent or similar content must be defined in such a way that the social network administrator does not have to independently assess whether the posts have illegal content or not (otherwise this would interfere with the prohibition of general control over the content that is hosted by the providers). Such a solution can therefore also be applied in Slovenia, although the Slovenian courts have yet to rule on the question of appropriate legal basis to enforce such legal claims in these matters.

The decision of the EU court is therefore ground-breaking and also controversial: on the one hand it is a victory for victims of hate speech, misinformation, illegal use of intellectual property, etc., as it has enabled them to take more effective action against violators of their rights, while on the other hand, social networks are ordered to take proactive action.

In response to the judgment, all those concerned with the matter are pointing out that this judicial decision significantly broadens the jurisdiction of national courts, since the aforementioned decision of the EU Court undermines the fundamental principle of EU law that one Member State cannot impose its law on another Member State. That is to say, because it is clear from the judgment, that national court decisions can have an effect that extends directly to other Member States and can also be effectively enforced there.

In spite of some negative effects, this judgment makes it possible to stop and prevent the spread of illegal content, which can have enormous reach on social networks and therefore have serious consequences. The EU Court of Justice has therefore interpreted the e-commerce directive in a way that gives both individuals and the courts the opportunity to take action against abuse and misconduct on social networks, and social networks will have to act proactively and take appropriate measures themselves, in order to meet the new standards of the changed case law.