Illegal content & platforms: the CJEU reaffirms the country of origin principle

posted on 21 November, 2023   (public)

The CJEU rules against the Austrian law KoPl-G on reporting mechanisms for providers of communication platforms

On 9 November 2023, the Court of Justice of the European Union (CJEU) reasserted the importance of the country of origin principle at the occasion of a request for a preliminary ruling regarding the Austrian federal law on communication platforms* (the KoPl-G).  


Facts & context:

In 2021, Austria introduced a law requiring providers of communication platforms to set up "an effective and transparent procedure for handling and processing notifications relating to allegedly illegal content" available on their platforms. 

These provisions were intended to apply to any providers with more than 100 000 registered users and an annual turnover superior to 500 000 euros in the preceding calendar year in Austria.

Google, Meta and TikTok filed a lawsuit against these measures and the Supreme Administrative Court of Austria decided to make a request for a preliminary ruling to the CJEU on 24 May 2022.

The EU legislation:

The Directive 2000/31 (e-Commerce Directive)

Article 3 (in a nutshell): 

§1. The country of origin principle: Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with its national provisions.
§2. The free movement of services: Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.
§4. Derogations/Exemptions: Member States may take measures to derogate from paragraph 2 in respect of a given information society service, provided that certain conditions are fulfilled:
- The measures shall be necessary [in the interests of public policy, the protection of public health, public security or the protection of consumers], taken against an information society service which undermines those objectives or constitutes a serious and grave risk to those objectives and proportionate to those objectives.
- The measures shall be taken only after an unsatisfactory prior request to the Member State where the provider is established and a prior notification to both this Member State and the Commission.

The preliminary ruling:

The preliminary ruling raises the question of the interpretation of the phrase "a given information society service". 

In other words, does Article 3 of the Directive allow derogating measures for a general category of [given] information society services (such as communications platforms)?

The decision of the CJEU:

- The use of the singular and the adjective ‘given’ tend to exclude "general and abstract measures aimed at a category of given information society services described in general terms";
- The prior request and notification procedure to the Member State of establishment presupposes that the concerned providers can be easily identified;
- Allowing Member States to take measures of a general and abstract nature applying without distinction to any providers of a category of information society services would seriously undermine the country of origin principle
The Court stressed the importance of this principle in the ecosystem put in place by this Directive to:
- guaranteeing the free movement of services and legal certainty for suppliers
- ensuring effective protection of public interest objectives
- improving mutual trust between Member States.

As a consequence, the CJEU ruled that Article 3 of the e-Commerce Directive must be interpreted as meaning that general and abstract measures aimed at a category of given information society services described in general terms and applying without distinction to any provider of that category of services does not fall under the scope of the possible derogating measures. 


With this decision, it seems that the CJEU intends to put an end to emerging national initiatives to regulate online platforms while the new Digital Services Act - a EU regulation building on the e-Commerce Directive and addressing the issue of online intermediaries' regulation - will soon fully enter into force.  


*Bundesgesetz über Maßnahmen zum Schutz der Nutzer auf Kommunikationsplattformen (Kommunikationsplattformen-Gesetz) (Federal Law on measures for the protection of users of communications platforms) (BGBl. I, 151/2020, ‘the KoPl-G’).

For additional information: see also the article in the European Audiovisual Observatory Newsletter IRIS-Merlin 2023-10

Further national initiatives on online content moderation suspended by Courts:
- Germany: The German Network Enforcement Act (NetzDG): the provisions obliging social media networks providing services in Germany to remove "clearly illegal" content within 24 hours after receiving a complaint were considered not compliant with the Directive 2000/31 and the country of origin principle by the Administrative Court of Cologne (decision of 1 March 2022). More information here (source: European Audiovisual Observatory). 
- France: The provisions of the French law Avia intended to create obligations for platforms operating in France to withdraw manifestly unlawful notified content have been struck down in June 2020 by the highest constitutional court in France as it constitutes a non-justified breach of the freedom of expression. More information here