The European Court of Justice has decided social media sites can now be forced to track down and remove defamatory posts worldwide when found to be defamatory by any member state’s court orders, contradicting a recent decision on Right To Be Forgotten laws declaring online consumer protections only apply to regions within the European Union.
On Thursday, the EU court made a ruling in favour of an Austrian politician, Eva Glawischnig-Piesczek, who sued Facebook in 2016 for a user having “defamed and insulted her” by sharing a news article and writing she was a “lousy traitor of the people,” a “corrupt oaf” and a member of a “fascist party”, according to a summary report from The New York Times. As a result, Facebook must erase the original comment and “equivalent remarks” across the globe, not just within the country, but are exempt from having to retroactively delete other defamatory content.
The decision showcases the EU’s curious governance over the World Wide Web. In the same breath of enforcing borderless justice on defamation, giving any European country the ability to internationally restrict content by their own law, it’ll suddenly abandon this universal standard when it comes to GDPR data protections which only apply to the EU’s 28-member bloc. Facebook, arguing in defense of free speech liberties and allowing legal distinctions across national lines, failed to keep the court consistent in their enforcement practice.
“There is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject… to carry out such a de-referencing on all the versions of its search engine,” the court recently ruled against Google, avoiding a GDPR lawsuit on holding unnecessary user content on all versions of their site against their will. “The balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world.”
Apparently, this nuance is abandoned when it favors the political class. “There is this impulse in Europe that is trying to set global regulatory standards,” argues Ben Wagner, director of the Privacy and Sustainable Computing Lab at Vienna University, who spoke with the Times. “The effort”, he continues, “is a pushback against the self-regulatory impulses of these platforms.” This is a fair point in concept. Our reporting has largely focused on big tech’s failures in due process, transparency, decentralization, and universality. For a company with over 2.5 billion users across a monopolistic 75% market share of all social media, necessary action is required for the sake of online liberty.
This judgment, however, shows a fundamental misunderstanding over how international justice and free speech standards (which there are none) can turn not just dumb and problematic, but unjust and tyrannical. “Remember,” Wagner continues, “we’re talking about a politician who is being insulted in a political context. That’s very different than a normal citizen. There needs to be greater scope for freedom of opinion and expression.”
As argued in excerpts from the Times, Facebook stated the court’s decision “undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country,” adding this only raises more questions over “the role that internet companies should play in monitoring, interpreting and removing speech that might be illegal in any particular country.”
In our report on Right To Be Forgotten, the laws allowing for users to demand big tech remove links to sensitive personal data from search results, we examined how Google’s similar defense of state sovereignty is “petty nationalism” using technicalities to skirt accountability. Ironically, the EU’s ruling is more an example of petty internationalism, naive enough to believe their courts can maintain an overarching system where competing laws and regulations across the globe can somehow coexist and their representatives can just pick and chose what is justice (which, of course, is unjust).
David Erdos, deputy director of the Center for Intellectual Property and Information Law at Cambridge University, told the Times this standard is unsustainable yet unlikely to lead down a slippery slope due to it being “narrowly crafted” on this particular case. “Courts will be feeling their way for years to come,” he said, suggesting the correct international approach would contrast any bans against international laws and refer down to the lower national courts of states within and outside the EU.
If this is the case, likely to lead to an increase in legal costs over online cases, more due process is better than broad-stroke enforcement that contradicts other legal systems. Nevertheless, this limited precedent should give concerns about the reach of the European censorship efforts. “The court’s decision opens the door for serious restrictions on freedom of expression due to the takedown of legitimate speech,” said Eliška Pírková, Europe policy analyst at Access Now, speaking to Politico. “Extending removal to the vague concept of ‘equivalent content’ is harmful because the context, as well as the motivation of users re-sharing content, may significantly differ with each re-upload.”
While it’s unclear how Facebook will go about content enforcement moving forward, it’s important not to get hysterical into a slippery slope fallacy. Given Europe’s current rules specifically prevent “general monitoring obligations”, meaning only specific cases of harmful material against specific individuals who file complaints are effected, thus protecting the freedom of expression of all the unrecognized without a legal case against their name — the legal equivalent of demanding credit for not yelling fire in a crowded theatre. “The court just assumes that a hosting platform can technically perform all this in quite a straightforward fashion for any type of right,” added Eleanora Rosati, associate professor of intellectual property law at Stockholm University, “but it is likely that some issues will arise in practice.”
Thank you for reading. This article was published for TrigTent, a bipartisan media platform for political and social commentary. Bailey Steen is a journalist, editor, and designer from Australia. You can read their work on Medium and previous publications such as Janks Reviews and Newslogue.
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