Liability Of Hosting Service Providers For Defamation Under e-Commerce Directive (Facebook)

On 3 October 2019, the CJEU made an important decision in case C-18/18 with respect to the liability of hosting service providers and whether they may be ordered to remove or block access to content that they store.. As a reminder, hosting service providers are subject to a specific liability regime regarding the information they transmit or store for their clients, but of course they remain subject to court injunctions. Accordingly, the CJEU decided that a host provider, in this instance Facebook, may be ordered to remove or to block access to information which was published on its social network, the content of which was identical to information previously declared to be unlawful.

Such an injunction would also be valid for equivalent (but not identical) content, to the extent that such content would remain essentially unchanged compared to the content previously declared unlawful and that the host provider is not required to carry out an independent assessment of that content to determine whether it is unlawful. Indeed, host service providers cannot be subject to a general obligation to monitor information they store or to actively search unlawful content, except in limited circumstances (e.g. under Luxembourg law, where necessary to safeguard national security or for the prevention, detection and...