Communication through social networks requires to protect and find a balance between different rights and interests(freedom of expression, personal and family intimacy, personal honour, protection of trademark reputation, protection of personal data). In this scenario, channels of information (social networks platforms) are both the vehicle and legally protected interest (guarantee access to networks). Consequently, recurring issues about the limits and balance between rights and legitimate interests to protect become more complex. The result is a so-called digital law whose main characteristic is the difficulty of identifying the jurisdiction in which it is applied. How to protect a right when it has been attacked in a social network? What is the applicable rule? What is the court of competent jurisdiction? How is a judicial decision executed globally?
The debate turns into lively discussions because of its implications with the establishment of controls and limits on the use of social networks. The focus on information society services providers does not seem to solve the problem nor does it seem very clear what their commitments should be. The position of the European Union is not clearly defined to this regard. On the one hand, under the Directive on electronic commerce, service providers are not responsible for processing and storage ofdata, except in the case that there is a recognition of the ilegal character of data published. The service provider is not required to have general supervision of the data storage. On the other hand, the recent Directive on copyright requires service providers to adopt a more vigilant action, and adopt “(…) measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers“(article 13). In a request for a preliminary ruling (C-18/18) before the Court of Justice of the Union on the European Directive on electronic commerce, the Advocate General conclusions point out that a information service provider(read Facebook) once is warned of an information characterized as illegal (read judicial ruling by which some comments are considered as defamatory or injurious) can be imposed with the obligation to seek and identify worldwide all the information identical to the information that was characterized as illegal. Advocate General, Maciej Szpunar, bases its argument that the European Directive on electronic commerce (…) does not preclude a host provider operating 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 was characterised as illegal by a court that has 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 who 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” (paragraph 75).