Worldwide social media injunctions may be impossible to enforce

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Howard Winkler
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By Paul Russell, LegalMattters Staff • A recent worldwide injunction issued by an Austrian court against Facebook concerning intellectual property rights may prove to be just as unenforceable as a similar Canadian action involving Google, says Toronto lawyer Howard Winkler.

According to a report on TechCrunch, Austria’s Supreme Court recently ended “a long-running speech takedown case – ruling [Facebook] must remove references to defamatory comments made about a local politician worldwide for as long as the injunction lasts.”

The comments in question concern a user’s post that referred to an Austrian Green Party politician as a “lousy traitor,” a “corrupt tramp” and a member of a “fascist party,” the story states. In 2016, the woman sued the social media giant and won an injunction, banning the comments on Facebook in her own country, but she continued her legal fight at the Court of Justice of the European Union (CJEU), asking that those comments be removed globally.

Last year the CJEU decided platforms can be instructed to remove illegal speech worldwide without running afoul of European rules that preclude platforms from being saddled with a “general content monitoring obligation,” the story adds, with Facebook’s appeal of that ruling turned down in November.

Many parallels to Canadian case

“The Austrian decision bears many similarities to a 2017 Supreme Court of Canada decision,” says Winkler, principal and founder of Winkler Law.

“That case dealt with issues of infringement of intellectual property rights, with the court granting a worldwide injunction, requiring Google to cease indexing or referencing certain search results,” he explains.

Winkler tells LegalMattersCanada.ca that the rulings in both cases “attempt to extend the reach of the court outside their jurisdiction to impose a worldwide injunction against online service providers.”

And therein lies the problem, he says, explaining the plaintiff in the Canadian decision was unsuccessful in persuading a U.S, court to enforce the injunction.

“The U.S. court basically said ‘take a hike,’” says Winkler. “It made it clear it was not going to enforce the Canadian order because, under U.S. law, a similar order would likely not have been granted against Google. That’s because the U.S. Communications Decency Act provides absolute immunity to online service providers such as Google and Facebook in respect to the content of others that they disseminate.”

He notes both Republicans and Democrats in the US have recently criticized this immunity, albeit for entirely different reasons.

If the Austrian politician attempts to have the global Facebook community enforce the Austrian injunction, Winkler says she may run into the same problem.

“Though she was successful in getting a worldwide order, non-Austrian jurisdictions may refuse to, in a sense, cede jurisdiction to a foreign court,” he says.

What words are ‘identical or equivalent’?

Winkler says another interesting aspect to the Austrian decision is that it obligates Facebook “to remove … any comments that are identical or equivalent in meaning worldwide,” according to the story.

“In defamation cases, it is normal to seek a permanent injunction against the wrongdoer from repeating the defamatory comments or words of similar effect,” he says. “The plaintiff can then enforce the injunction in relation to words of similar effect by way of contempt proceedings where the court can assess whether in fact the offending words are of similar effect.”

Winkler says he represented a client in a defamation case in these circumstances.

“The words that were published by the defendant after the injunction was issued were not identical to the words complained of in the lawsuit, but close enough, so we argued that the words were of similar effect,” he says. “The court agreed and enforced the injunction, ultimately finding the defendant in contempt, for which she spent time in jail.”

Too much of an obligation

When it comes to global content providers, Winkler says it is very difficult for them to ensure they are not linking to a web page that contains similar or equivalent content to what has been found to be offensive. This, in fact, burdens them with a proactive general content monitoring obligation.

“It is one thing to say to Google or Facebook that they must delist or delete specific content, but to ask them to remove and delete words of similar or equivalent meaning, in my view, goes too far,” he says.

In relation to complaints about similar or equivalent words, Winkler says the politician should wait to see if similar or equivalent words are published by the defendant. If that happens, she could then go back to the Austrian court and asked for that new posting to be removed by Facebook and for an order of contempt against the defendant.

“Also, for an injunction like that granted by the Austrian court to be enforceable, there must be a high degree of certainty about what companies such as Facebook or Google are supposed to do,” he says. “If there is some uncertainty in that regard, for example in determining if words are similar or equivalent, the injunction would in my opinion be unenforceable.”