In Tech We Trust? Fixing the CJEU's Evolutionary Interpretation of the Prohibition of General Monitoring Obligations in the Era of Automated Content Moderation

Abstract

In Glawischnig-Piesczek (C-18/18), the Court of Justice of the European Union (CJEU) held that online service providers (OSPs) can be ordered to perform global removal of all content identical or equivalent to the specific piece of information held illegal by a national court. By doing so, the CJEU relaxed the prohibition of general monitoring obligations under Article 15 of the e-Commerce Directive as it found that tools for automated content moderation (ACM) can enable OSPs to comply with broader takedown duties. The main objective of this paper is to demonstrate the flaws of the CJEU’s progressive interpretation of Article 15 of the e-Commerce Directive and indicate ways to overcome them. First, it defines the goals pursued by the prohibition of general monitoring obligations and addresses the controversy regarding its role in the context of current initiatives to make OSPs deploy ACM for proactive detection and removal of illegal content. By looking at the CJEU’s reasoning in Glawischnig-Piesczek as an important contribution to this debate, the paper contends that shrinking the prohibition of general monitoring obligations undermines the principle of legal certainty and leads to unreasonable tech solutionism. The limited reliability of ACM tools hardly makes them key to breaking a vicious circle of hate and profanity taking place online. Thus, takedown obligations of a wider scope imposed on OSPs can lead to an unlawful interference with fundamental rights of Internet users. Given the lack of uniformity among defamation laws in different states, injunctions with a worldwide effect might give rise to jurisdictional tensions. A less restrictive approach to the prohibition of general monitoring obligations can also compromise the level playing field for small- and medium-sized OSPs unable to resort to the state-of-the-art ACM systems. In light of the outlined concerns, the paper presents an alternative approach to interpretation of Article 15 of the e-Commerce Directive. It stresses the importance of preserving relevant limitations on monitoring obligations of OSPs and providing greater clarity to the notion of ‘equivalent’ content. It is also suggested that the CJEU should have also asserted that injunctions of a global scope can only be issued in exceptional circumstances, and national courts must not impose takedown duties which can be performed exclusively by means of ACM. The approach proposed is argued to promote proactive measures against illegal content without defying the purposes the prohibition of general monitoring obligations seeks to achieve.