El Tribunal de Justicia de la Unión Europea («TJUE») avala que un juez nacional acuerde una medida cautelar que implique la supresión y/o bloqueo de «datos similares» a otros ilícitos y de los que el prestador de servicios de alojamiento («PSA») no tiene conocimiento efectivo; con un alcance mundial. Así se desprende de la STJUE (Sala Tercera), de 3 de octubre de 2019, en el asunto Eva Glawischnig-Piesczek c. Facebook Ireland Limited (C-18/18) en el marco de la Directiva 2000/31/CE («Directiva de Comercio Electrónico»-«DCE»-) actualmente en proceso de revisión.
El litigio se suscitó entre la Sra. Eva Glawischnig-Piesczek (diputada nacional austríaca) con motivo de una publicación en la red social Facebook por parte de un usuario en la que se incluía una foto de la diputada junto con un comentario contrario al honor (según declaró el tribunal de instancia). Ante ello, la Sra. Glawischnig-Piesczek remitió una carta a la red social para que retirara el comentario. Al no acceder a ello, interpuso contra Facebook una demanda ante el Tribunal de lo Mercantil de Viena que emitió un auto por el que cesara en tal conducta. Facebook se avino a ello sin perjuicio de la correspondiente apelación en donde el Tribunal Superior Regional de Viena confirmó el auto dictado en instancia si bien solo para el concreto comentario (contenido ilícito puesto en conocimiento de Facebook) y no los «datos similares».
Recurrida en casación por ambas partes, el Tribunal Supremo decidió plantear una cuestión prejudicial ante el TJUE para conocer, en esencia, si el art. 15 de la DCE impide que una orden de cesación de comunicación de contenidos ilícitos abarca también las declaraciones literalmente idénticas o de contenido similar («datos similares») aunque el PSA no tenga específicamente conocimiento efectivo de la ilicitud de éstas (art. 14 DCE). Y ello porque supondría imponer al prestado una obligación general de supervisión de datos transmitidos y/o almacenados (o de realización de búsquedas activas de hechos o circunstancias susceptibles de ser ilícitos), contrario al art. 15 de la Directiva. De apreciar que ello cabe en Derecho de la Unión Europea («UE»), el tribunal remitente también se pregunta cuál es el alcance de tal medida (en particular si llega a escala mundial).
Pues bien, el TJUE concluye que la DCE no se opone a que una medida cautelar como la que nos ocupa produzca efectos a escala mundial (en el marco del Derecho internacional que corresponda). Ello se deriva de una lectura del art. 18.1 junto con los considerandos 29 y 30 de la DCE (§49-50). De la misma manera, entiende que tal medida no implica una imposición al PSA de supervisar de manera general datos que almacena, ni una obligación de realizar búsquedas activas de hechos o circunstancias presuntamente ilícitas (§47).
Y, en fin, que tal medida cautelar se extiende a los «datos similares» al contenido ilícito efectivamente comunicado al PSA (entendiendo por estos aquel mensaje «cuyo contenido permanece esencialmente inalterado-§39-) «siempre que la supervisión y la búsqueda de los datos a los que se refiere tal medida cautelar se limiten a aquellos datos que transmitan un mensaje cuyo contenido permanezca esencialmente inalterado con respecto al que dio lugar a la declaración de ilicitud y que contenga los elementos especificados en la medida cautelar acordada, y en la medida en que las diferencias en la formulación de dicho contenido similar al que caracteriza a una información declarada ilícita con anterioridad no puedan obligar al prestador de servicios de alojamiento de datos a realizar una apreciación autónoma de ese contenido» (§53.II).
Fuente: Souslamaindelautre
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