Full paper available at GRUR International.
The Court of Justice of the European Union’s (CJEU) 2019 ruling in Glawischnig-Piesczek v Facebook Ireland** addresses courts’ powers to issue injunctions requiring internet hosting platforms to proactively monitor content posted by their users. It answers important questions about limitations on such injunctions under the eCommerce Directive (Directive 2000/31/EC). But, as this Opinion explains, it leaves some much thornier questions unresolved.
Glawischnig-Piesczek holds that courts may, consistent with Art. 15 of the eCommerce Directive, require platforms to monitor for and remove specific content. Monitoring orders may not, however, require platforms to carry out an ‘independent assessment’ of the content. The ruling does not closely examine what kinds of injunctions or filtering technologies are permissible, nor does it explore fundamental rights considerations when courts are asked to order platforms to monitor their users. This Opinion lays out the case’s technological, legal, and policy backdrop, and identifies important questions it leaves open for Member State courts. In particular, the Opinion suggests that Glawischnig-Piesczek’s limitation on ‘independent assessment’ will make it difficult for courts to devise injunctions that simultaneously follow the CJEU’s guidance under the eCommerce Directive and meet the requirements of fundamental rights. It lists key fundamental rights considerations for future cases involving potential monitoring injunctions, including procedural considerations in cases affecting the rights of absent third parties.