Europe’s top court has set a new line for the policing of illegal speech online. The ruling has implications for how speech is regulated on online platforms — and is likely to feed into wider planned reform of regional rules governing platforms’ liabilities.
Per the CJEU decision, platforms such as Facebook can be instructed to hunt for and remove illegal speech worldwide — including speech that’s “equivalent” to content already judged illegal.
Although any such takedowns remain within the framework of “relevant international law”.
So in practice it does not that mean a court order issued in one EU country will get universally applied in all jurisdictions as there’s no international agreement on what constitutes unlawful speech or even more narrowly defamatory speech.
Existing EU rules on the free flow of information on ecommerce platforms — aka the eCommerce Directive — which state that Member States cannot force a “general content monitoring obligation” on intermediaries, do not preclude courts from ordering platforms to remove or block illegal speech, the court has decided.
That decision worries free speech advocates who are concerned it could open the door to general monitoring obligations being placed on tech platforms in the region, with the risk of a chilling effect on freedom of expression.
Facebook has also expressed concern. Responding to the ruling in a statement, a spokesperson told us:
“This judgement raises critical questions around freedom of expression and the role that internet companies should play in monitoring, interpreting and removing speech that might be illegal in any particular country. At Facebook, we already have Community Standards which outline what people can and cannot share on our platform, and we have a process in place to restrict content if and when it violates local laws. This ruling goes much further. It undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country. It also opens the door to obligations being imposed on internet companies to proactively monitor content and then interpret if it is “equivalent” to content that has been found to be illegal. In order to get this right national courts will have to set out very clear definitions on what ”identical” and ”equivalent” means in practice. We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”
The legal questions were referred to the CJEU by a court in Austria, and stem from a defamation action brought by Austrian Green Party politician, Eva Glawischnig, who in 2016 filed suit against Facebook after the company refused to take down posts she claimed were defamatory against her.
In 2017 an Austrian court ruled Facebook should take the defamatory posts down and do so worldwide. However Glawischnig also wanted it to remove similar posts, not just identical reposts of the illegal speech, which she argued were equally defamatory.
The current situation where platforms require notice of illegal content before carrying out a takedown are problematic, from one perspective, given the scale and speed of content distribution on digital platforms — which can make it impossible to keep up with reporting re-postings.
Facebook’s platform also has closed groups where content can be shared out of sight of non-members, and where an individual could therefore have no ability to see unlawful content that’s targeted at them — making it essentially impossible for them to report it.