EU court officer says countries can’t sidestep Ireland to regulate Big Tech more strictly

In an opinion given by EU advocate general Maciej Szpunar this week, Austria should not be allowed to impose tougher liability rules on big tech companies than are set down by Irish authorities.

The case in question concerned an attempt by the Austrian government to make big tech firms such as Google, Meta and TikTok more responsible for illegal content posted on their platforms. But this effort falls foul of EU information and e-commerce laws, the advocate general found.

“The advocate general notes that, within the coordinated field, the directive on electronic commerce prohibits member states from restricting the freedom to provide information society services from another member state,” said a spokesperson.

“That directive in principle precludes, subject to derogations, a provider of an electronic commerce service from being made subject to stricter requirements than those provided for by the law in its member state of origin.”

Within the EU legal system, although the advocate general’s opinion is not binding, it is considered persuasive and is usually followed by European courts.

The advocate general said that EU laws “sought to eliminate legal obstacles to the proper functioning of the internal market”. Any “divergences in legislation”, he said, could result in “legal uncertainty as to which national rules apply to such services… Allowing different laws to apply to a provider or to its service would run counter to that objective,” he said.

Under EU law, exceptions and derogations to the country-of-origin principle of regulation are allowed for countries to apply varying rules.

But “a member state other than the member state of origin can derogate from the free movement of information society services only by measures taken on a case-by-case basis, following prior notification to the Commission and after asking the member state of origin to take measures in respect of information society services, which did not occur in this case.

“Furthermore, to take the view that a general and abstract provision applying to any provider of a category of information society services constitutes a ‘measure’ would be tantamount to authorising the fragmentation of the internal market by national regulations.”

The Irish Independent has contacted spokespeople from Meta, Google and TikTok for a response.