Google Ireland and Others (C-376/22): is the strict interpretation of national public policy exceptions to the benefit of EU regulation?
On the 9th of November 2023, the Court of Justice issued a judgment concerning the interpretation of the derogation clause in Article 3 (4) of the Information Society Services Directive (also known as the e-commerce Directive). The case concerned an Austrian law that imposed obligations on communication platform services regarding illegal content (such as hate speech, harassment, and content related to terrorist and pornographic offences), even when the platform is established in another Member State.
Under the e-commerce Directive, the rules that apply to the service providers are the ones of the country of origin where they are established. Other Member States where the services are provided may not subject those services to their own national rules. However, as a derogation to this rule, Article 3 (4) provides for specific grounds under which Member States can still apply rules to the service providers, including grounds of public policy. The question hereby was whether the Austrian legislation could be considered to fall under Article 3 (4) of the Directive.
In its judgment, the Court refused to accept that such a law could fall under the derogation clause of the Directive, which cannot be used for general and abstract measures. Instead, the Court affirmed that the derogation clause could only be used to regulate services on a case-by-case basis.