Facebook lost a takedown order lawsuit in the EU

pexels-photo-927629.jpegThe European Court has issued a decision on the case Case C‑18/18, Eva Glawischnig-Piesczek v Facebook Ireland Limited, which concerns the following:

Ms Eva Glawischnig-Piesczek was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party ‘die Grünen’ (The Greens) and federal spokesperson for that party.

Facebook Ireland operates a global social media platform (‘Facebook Service’) for users located outside the United States of America and Canada.

On 3 April 2016, a Facebook Service user shared on that user’s personal page an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’, which had the effect of generating on that page a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of Ms Glawischnig-Piesczek. That user also published, in connection with that article, a comment which the referring court found to be harmful to the reputation of the applicant in the main proceedings, and which insulted and defamed her. This post could be accessed by any Facebook user.

By letter of 7 July 2016, Ms Glawischnig-Piesczek, inter alia, asked Facebook Ireland to delete that comment.

Because Facebook Ireland did not withdraw the comment in question, Ms Glawischnig-Piesczek brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) which, by interim order of 7 December 2016, directed Facebook Ireland, with immediate effect and until the proceedings relating to the action for a prohibitory injunction have been finally concluded, to cease and desist from publishing and/or disseminating photographs showing the applicant [in the main proceedings] if the accompanying text contained the assertions, verbatim and/or using words having an equivalent meaning as that of the comment referred to in paragraph 12 above.

Facebook Ireland disabled access in Austria to the content initially published.

On appeal, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld the order made at first instance as regards the identical allegations. However, it also held that the dissemination of allegations of equivalent content had to cease only as regards those brought to the knowledge of Facebook Ireland by the applicant in the main proceedings, by third parties or otherwise.

The Handelsgericht Wien (Commercial Court, Vienna) and the Oberlandesgericht Wien (Higher Regional Court, Vienna) based their decisions on Paragraph 78 of the Law on copyright and Paragraph 1330 of the General Civil Code, on the ground, inter alia, that the published comment contained statements which were excessively harmful to the reputation of Ms Glawischnig-Piesczek and, in addition, gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard.

Each of the parties in the main proceedings lodged appeals on a point of law at the Oberster Gerichtshof (Supreme Court, Austria).

Having been called on to adjudicate whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended to statements with identical wording and/or having equivalent content of which it is not aware, the Oberster Gerichtshof (Supreme Court) states that, in accordance with its own case-law, such an obligation must be considered to be proportionate where the host provider was already aware that the interests of the person concerned had been harmed on at least one occasion as a result of a user’s post and the risk that other infringements may be committed is thus demonstrated.

However, considering that the dispute before it raises questions of the interpretation of EU law, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:

–  worldwide;

–  in the relevant Member State;

–  of the relevant user worldwide;

–  of the relevant user in the relevant Member State?

(2) In so far as Question 1 is answered in the negative: does this also apply in each case for information with an equivalent meaning?

(3) Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance?’

The Court’s decision:

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’), in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from:

– ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;

– ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, and

–  ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law.

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Can we do a visual search for trademarks in Croatia?

dubrovnik-512798_960_720.jpgEUIPO reports about the newly available option for trademark search by visual elements for Croatia. This is possible after the Croatian Patent Office gave the necessary access for this purpose to the global trademark database TMView, which can be used for conduction such trademark search.

The other countries that allow this search are: Estonia, Bulgaria, France, Greece, Lithuania, Romania, Spain, UK, Malta, Sweden, Italy, Ireland, Slovakia, and the Czech Republic.

For more information here.

When and where Facebook has to remove illegal information – an EU perspective

pexels-photo-1471752.jpegThe Advocate General of the European Court   has given its position on case C‑18/18 Eva Glawischnig-Piesczek срещу Facebook Ireland Limited, which concerns the following:

Ms Eva Glawischnig-Piesczek was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party die Grünen (‘the Greens’) and the federal spokesperson of that party.

Facebook Ireland Limited, a company registered in Ireland having its headquarters in Dublin, is a subsidiary of the United States corporation Facebook Inc. Facebook Ireland operates, for users outside the United States and Canada, an online social network platform accessible at the address http://www.facebook.com. That platform enables users to create profile pages and to publish comments.

On 3 April 2016 a user of that platform shared on their personal page an article from the Austrian online news magazine oe24.at entitled ‘Greens: Minimum income for refugees should stay’. That publication had the effect of generating on the platform a ‘thumbnail’ of the original site, containing the title and a brief summary of the article, and a photograph of the applicant. That user also published, in connection with that article, an accompanying disparaging comment about the applicant accusing her of being a ‘lousy traitor of the people’, a ‘corrupt oaf’ and a member of a ‘fascist party’. The content placed online by that user could be consulted by any user of the platform in question.

By letter of 7 July 2016, the applicant, inter alia, asked Facebook Ireland to delete that comment.

As Facebook Ireland did not remove the comment in question, the applicant brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) and requested that court to issue an injunction ordering Facebook Ireland to cease publication and/or dissemination of the photographs of the applicant if the accompanying message disseminated the same allegations and/or ‘equivalent content’, namely that the applicant was a ‘lousy traitor of the people’ and/or a ‘corrupt oaf’ and/or a member of a ‘fascist party’.

On 7 December 2016 the Handelsgericht Wien (Commercial Court, Vienna) made the interlocutory order applied for.

Facebook Ireland subsequently disabled access in Austria to the content initially published.

On appeal, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld the order made at first instance as regards the identical allegations. In doing so, it did not grant Facebook Ireland’s request that the interlocutory order be limited to the Republic of Austria. On the other hand, it held that the obligation to cease the dissemination of allegations of equivalent content related only to those brought to the knowledge of Facebook Ireland by the applicant in the main proceedings, by third parties or otherwise.

The courts of first and second instance based their decisions on Paragraph 78 of the UrhG and Paragraph 1330 of the ABGB, and took the view, in particular, that the public comment contained statements which were excessively harmful to the applicant’s reputation and gave the impression that she was involved in unlawful conduct, without providing the slightest evidence in that regard. Nor, according to those courts, was it permissible to rely on the right to freedom of expression for statements relating to a politician if there was no connection with a political debate or a debate that was in the public interest.

The two parties to the main proceedings brought actions before the Oberster Gerichtshof (Supreme Court, Austria), which considered that the statements at issue were intended to damage the applicant’s reputation, to insult her and to defame her.

The referring court is required to adjudicate on the question whether the cease and desist order made against a host provider which operates a social network with a large number of users may also be extended, worldwide, to statements with identical wording and/or having equivalent content of which it is not aware.

In that regard, the Oberster Gerichtshof (Supreme Court) states that, according to its own case-law, such an obligation must be considered to be proportionate where the service provider was already aware that the interests of the person concerned had been harmed on at least one occasion as a result of the contribution of a recipient of the service and where the risk that other infringements would be committed is thus demonstrated.

It was in those circumstances that the Oberster Gerichtshof (Supreme Court), by decision of 25 October 2017, received at the Court on 10 January 2018, decided to stay proceedings and to refer the following questions to the Court:

‘(1) Does Article 15(1) of Directive [2000/31] generally preclude any of the obligations listed below of a host provider which has not expeditiously removed illegal information, specifically not just this illegal information within the meaning of Article 14(1)(a) of [that] directive, but also other identically worded items of information:

(a)  worldwide?

(b)  in the relevant Member State?

(c)  of the relevant user worldwide?

(d)  of the relevant user in the relevant Member State?

(2)  In so far as Question 1 is answered in the negative: Does this also apply in each case for information with an equivalent meaning?

(3)   Does this also apply for information with an equivalent meaning as soon as the operator has become aware of this circumstance?’

The Advocate’s opinion:

(1) Article 15(1) of 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 (‘the Directive on electronic commerce’) must be interpreted as meaning that it does not preclude a host provider which operates a social network platform from being ordered, in the context of an injunction, to seek and identify, among all the information disseminated by users of that platform, the information identical to the information that has been characterised as illegal by a court that issued that injunction. In the context of such an injunction, a host provider may be ordered to seek and identify the information equivalent to that characterised as illegal only among the information disseminated by the user that disseminated that illegal information. A court adjudicating on the removal of such equivalent information must ensure that the effects of its injunction are clear, precise and foreseeable. In doing so, it must weigh up the fundamental rights involved and take account of the principle of proportionality.

(2) As regards the territorial scope of a removal obligation imposed on a host provider in the context of an injunction, it should be considered that that obligation is not regulated either by Article 15(1) of Directive 2000/31 or by any other provision of that directive and that that provision therefore does not preclude that host provider from being ordered to remove worldwide information disseminated via a social network platform. Nor is that territorial scope regulated by EU law, since in the present case the applicant’s action is not based on EU law.

(3)  Article 15(1) of Directive 2000/31 must be interpreted as meaning that it does not preclude a host provider from being ordered to remove information equivalent to the information characterised as illegal, provided that a removal obligation does not entail general monitoring of the information stored, and is the consequence of awareness resulting from the notification made by the person concerned, third parties or another source.

Be aware if someone tries to register your brand as a .eu domain

computer-3368242_960_720.jpgThe European Intellectual Property Office (EUIPO) and the .eu and .ею domain registry manager EURid announced the launch of a new service which will help the fight against bad faith domain registrations.

Some people have taken advantage of early publication of EUTM applications and registered the EUTM as a .eu domain name in bad faith. Effectively reducing the risk of such cyber-squatting infringements requires adopting preventive actions such as raising awareness and pro-actively informing the EUTM holders.
 
As of 18 May, holders and applicants of a EUTM can opt-in to receive alerts as soon as a .eu domain name is registered that is identical to their EUTM (application). By receiving such alert, EUTM holders are informed much faster and may take appropriate action much sooner.

For more information here.

Some answers regarding the EU Copyright reform

flag-2608475_960_720.jpgThe European Commission published answers to a variety of questions regarding the Copyright reform that has been approved recently. The questions are as follow:

1. The European Parliament voted on the new copyright rules at EU level – what are they about?
2. Why do we need to modernise the EU copyright rules?
3. Are the new copyright rules limiting users and their freedom online?
4. Will the Directive impose upload filters online?
5. Will the Copyright Directive prevent users from expressing themselves on internet in the same way as now? Will memes and GIFs be banned?
6. How will the new Copyright rules tackle the discrepancy between the remuneration of creators and that of certain online platforms (the so-called ‘value gap’)?
7. How will the new copyright rules on user-uploaded platforms benefit the users?
8. What are the services covered by the new rules on user-uploaded platforms?
9. What will be the special regime for startups and smaller enterprises?
10. What will happen to online encyclopaedias (like Wikipedia) that are based on content uploaded by users?
11. How will the new press publishers’ right work?
12. Are small and emerging press publishers going to be affected by the reform?
13. Is the new Copyright Directive creating a “hyperlink tax”?
14. With the new rules, will the use of “snippets” be forbidden?
15. How will the new Directive benefit journalism and journalists?
16. How will the Directive ensure fair remuneration for individual authors and performers?
17. How will the new copyright rules strike a fairer balance in the relationships between creators and their contractual partners?
18. What is the contract adjustment mechanism? Does it interfere with contractual freedom?
19. What is the revocation mechanism and why is it needed?
20. What are the new exceptions to copyright laid down in the Copyright Directive?
21. How will the new copyright rules benefit researchers?
22. What is the purpose of the other, general, text and data mining exception?
23. Who will benefit from the new teaching exception?
24. Will the new copyright rules enhance the preservation and availability of cultural heritage?
25. What will it change for users with regards to “public domain” content?
26. How will the new copyright rules foster the availability of EU audiovisual works on video-on-demand platforms?

You can find the answers here.

Smart Things cannot be a trademark in The EU

turn-on-2944067_960_720Samsung Electronics won an invalidation proceeding against the following European trademark registered for classes 9, 20 and 35:

CJ4JX4FZVCC523YA2TMALSKFLF2IXTTD6ZP4RRADRLOBXNKHQC5VQYW6R6XX2PINLSBVEBY5EVR5K.jpg

The invalidation was based on absolute grounds – descriptiveness in relation to the trademark’s goods and services. The applicant argued that its mark was distinctive because when it was applied for in 2012 it wasn’t included in dictionaries and on top of that the concept for the internet of things wasn’t popular among consumers.

Initially, the EUIPO dismissed Samsung’s request stating that although Smart Things are descriptive words the presence of an emoticon in the sign is enough to create a necessary level of distinctiveness.

The decision was appealed.

According to the Board of Appeal, the trademark at hand is fully descriptive for the relevant goods and services and this cannot be overcome by the emoticon. What’s more, this phrase has to be left free for use for all market participant taking into account that it is highly used for different technologies. The fact that it wasn’t included in a dictionary in 2012 is irrelevant for the case.

Source: WIPR.

EPO launched a new beta version of ESPACENET

European_Patent_Office.svg_-m6lps816qbj2ljy89lj0almvgiwzn2hmwpfraz5tx4.png

The European Patent Office launched the beta version of its refreshing database for patent searching ESPACENET. The new version is more modern, dynamic, intuitive and it is optimised to work on different devices including desktop PCs, tablets and smartphones.

The beta version is accessible here. For more information about it, you can watch the hereunder video presentation. EPO encourages sending feedback, which can be done from here.