Austria v. Google Ireland, Meta Platforms Ireland, and Tiktok
From the Advisory Council
This is a post authored by the respected Cristina Vanberghen, a Distinguished Expert of the ISAIL Advisory Council.
No 167/2023 : 9 November 2023
Freedom of establishment
Combating illegal content on the Internet: a Member State may not subject a communication platform provider established in another Member State to general and abstract obligations.
Case: Austria v. Google Ireland, Meta Platforms Ireland, and Tiktok
Background: In 2021, Austria introduced a law mandating domestic and foreign communication platform providers to establish mechanisms for reporting and verifying potentially illegal content. The law also required the regular and transparent publication of reports on illegal content, with an administrative authority having the power to impose fines of up to €10 million for non-compliance. Google Ireland, Meta Platforms Ireland, and Tiktok, three platforms established in Ireland, challenged the Austrian law, asserting that it violated EU law, specifically the directive on information society services.
Legal Argument
The three platforms contended that the Austrian law contradicted EU law, particularly the directive on information society services. The Court of Justice, when approached by an Austrian court, clarified that the directive aimed to create a legal framework ensuring the free movement of information society services across Member States. The directive eliminated obstacles arising from differing national rules through the principle of control in the Member State of origin.
Directive and Derogations
While acknowledging that Member States, under specific conditions and cases, could take measures for public policy, health, security, or consumer protection, the Court emphasized that such derogations must be notified to the European Commission and the Member State of origin. However, Member States were prohibited from adopting general and abstract measures applying without distinction to any provider of information society services, irrespective of their establishment in the Member State of origin or other Member States.
Legal Ruling
The Court ruled in favor of the platforms, stating that the Austrian law was inconsistent with EU law. Allowing Member States to impose general and abstract obligations without distinction on providers would undermine the principle of control in the Member State of origin, infringe on regulatory powers, compromise mutual trust between Member States, and contravene the principle of mutual recognition. Such measures would also disrupt the freedom to provide services and hinder the internal market's proper functioning.
Implications
The decision emphasized the importance of maintaining the principle of control in the Member State of origin and mutual trust among Member States. It highlighted that general and abstract measures affecting information society services should be carefully scrutinized to prevent encroachments on the regulatory powers of the home Member State and to uphold the principles of freedom to provide services and the proper functioning of the internal market.