CYIL vol. 12 (2021)

CYIL 12 (2021) THE GLOBAL REACH OF THE RIGHT TO BE FORGOTTEN THROUGH THE LENSES … It should be noted that the issue of universal application of EU data protection legislation was also considered in the case Eva Glawischnig-Piesczek v Facebook Ireland Limited (Case C-18/18). 71 The cases of Piesczek v. Facebook and Google v. CNIL considered various EU legislative acts, but both concerned precisely the territorial scope of injunctions against internet intermediates. 72 In Piesczek v. Facebook , the CJEUmade some changes in its approach compared to Google v. CNIL . In accordance with the circumstances of the Piesczek v. Facebook case, a Facebook user published an article about the social security of refugees and included several slanderous comments about Eva Glawischnig-Piesczek, a member of the Austrian Green Party. According to the judgment of the Austrian courts, Facebook has disabled access to the content in Austria. The Austrian Supreme Court asked the CJEU to consider whether Article 15 of the E-Commerce Directive allowed the injunction to be extended globally as well as to other identical statements and those with an equivalent meaning. The AG recommended the CJEU adhere to the position that the court injunction should apply worldwide however even if such an injunction should cover identical statements by any Internet user, that it should only apply to equivalent statements by the user who is the author of the unique illegal content. 73 As in the case of Google v. CNIL , the importance of a balance between fundamental rights was again emphasized, for which the AG proposed criteria for the monitoring of ‘equivalent’ information: it should be “clear, precise and foreseeable” 74 . The recommended criteria were not reflected in the CJEU judgment itself. The CJEU allows monitoring for both identical and equivalent information across all users of an online platform, but it does not point out any qualification for equivalent information. The CJEU’s judgment does not mention, that the right to personal data protection should be balanced with other fundamental rights. In the judgment of Piesczek v Facebook the CJEU only indicated that the monitoring of such information shall be restricted to “information conveying a message the content of which remains essentially unchanged compared with [unlawful content]”. 75 But this wording added ambiguity to the question and raised the question on what information should be subject to monitoring, since it is impossible to clearly specify what “essentially unchanged” means. As opposed to Google v. CNIL concerning the territorial scope of injunctions the CJEU held that Member States could issue them against intermediaries with worldwide effect “ within the confines of public international law”. 76 To substantiate its conclusions regarding the admissibility of global injunctions in the Piesczek v. Facebook case, the CJEU relied primarily on article 18(1) and recital 52 of the E-Commerce Directive (ECD). According to recital 52 of the E-Commerce Directive, Member States must ensure that “ appropriate court actions ” are available to guarantee victims effective access to damage which may arise in connection with “information society services”, which “ is characterised both by its rapidity 71 Hereinafter – Piesczek v Facebook. 72 See also MAZÚR, J., PATAKYOVÁ, M.T.: Regulatory Approaches to Facebook and Other Social Media Platforms: Towards Platforms Design Accountability. Masaryk University Journal of Law and Technology , 2019, vol. 13, no. 2, pp. 219–241. 73 Opinion of Advocate General Szpunar delivered on 4 June 2019. Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited , para. 109. 74 Ibid, para. 71. 75 Ibid. 76 Ibid, para. 53.

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