Worldwide removal of libellous publications now a possibility

17-10-2019

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A recent case brought by an Austrian politician against Facebook has changed the scope of cases involving defamatory statements which are posted online. 

The law surrounding libellous comments posted on Facebook and other social media platforms says that website operators are not responsible for the libellous material when it is published. However, if they are made aware of the libellous content, they must either remove it, or face being held liable under defamation law as a publisher themselves. 

In a recent ruling on the case by the ECJ, the court made three important findings:

  • If a court in an EU country finds that a post is illegal, the website can be ordered to remove any copies of the publication;
  • This also applies to any substantially similar posts to the original offending publication, so that publishers cannot get away with slightly amending libellous statements; and
  • The ruling applies to publications throughout the whole world (not just the EU) provided that there is international law or a treaty which allows it.

The EU had already issued a directive saying that social media companies were not obliged to monitor everything which was published on their sites, nor did they have a positive obligation to look for illegal material. 

The practical implication of the ECJ's ruling (which cannot be appealed) is that where a court of an EU member state finds that material should be removed from a social media platform (because it is hate speech, or defamatory for example), the website operator must then ensure that anything substantially similar should also be removed. 

The wording that the ECJ used was that "identical" and "equivalent" material to a libellous or illegal post must be sought out by social media companies, and removed. There could be some scope for further legal argument about the meaning of these terms, but the overall principle is clear. 

Judith Thompson, who deals with libel and slander cases, and other issues of reputation management says: "It will be interesting to see how this law develops. The ECJ's decision cannot be appealed which means that Facebook and other social media operators are now under fairly onerous obligations to seek out and remove offending material, which previously was not the case. There will no doubt be complaints about freedom of speech from social media companies, but for victims of libel it can be very upsetting to have to search through offensive material online to ensure it's removed. Now some of that burden has been removed from the victims and passed on to the companies that host this material on their websites."

If you have been the victim of libel on Facebook, or another social media platform, contact us today to find out how we can help.

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