“ORF v. Facebook”

• 1. According to Art. 15(1) of the e-Commerce Directive (Sec. 18(1) ECG), access providers and host providers are not subject to a general monitoring obligation with regard to the external content they transmit or store. They cannot be obliged to actively search for illegal content on their own initiative. However, the imposition of specific monitoring measures by national authorities and courts is permissible. This includes in particular civil court cease-and-desist orders, which may also include future infringements of rights and also those by other (third-party) users.

• 2. Cease-and-desist orders may refer not only to the original illegal content, but also to content that is identical or equivalent. Identical content is content that essentially corresponds to the content that was found to be illegal. The “core conformity” must be apparent at a layman’s first glance or must be ascertainable by technical means (e.g. filtering software). In addition, the criteria decisive for the finding of illegality must be sufficiently specified in the order. If these principles are complied with, the cease-and-desist order is sufficiently specific and not excessive and does not impose a disproportionate obligation on the provider.

• 3. In principle, a cease-and-desist order may also be granted worldwide effect. The limit on a worldwide injunction is that the decision of the national courts must take into account the various internationally recognised legal principles. In the case of intellectual property claims, this applies to the principle of territoriality. This principle limits the scope of the order to domestic protection. In the case of cease-and-desist obligations which are not limited from the outset by the territoriality principle, the plaintiff is required to make a clear statement if he wants to claim protection beyond Austria, otherwise it must be assumed – in the absence of corresponding indications – that protection is only sought for Austria.