A new ruling by the EU Court of Justice seems to compel social media companies to enact EU censorship demands even outside of its jurisdiction.
The judgment was made on the case of Eva Glawischnig-Piesczek v Facebook Ireland, in which the Austrian Green Party politician seeks to force Facebook to remove content that she feels is harmful to her reputation and anything that sounds a bit like it. The court was asked to interpret the Directive on electronic commerce and concluded it doesn’t prevent member states from imposing the following on ‘host providers’, which seems to mean all social media platforms and maybe beyond.
- To remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;
- To remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content (thus, the host provider may have recourse to automated search tools and technologies);
- To remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law, and it is up to Member States to take that law into account.
In other words, if an EU member state decides a bit of online content should be censored, there’s nothing stopping it legally compelling internet platforms to remove it and anything its algorithms consider to be similar to it on a global basis. This seems to put enormous power of censorship in the hands of EU claimants who can afford to litigate.
“This judgment has major implications for online freedom of expression around the world,” said Thomas Hughes, Executive Director of free speech campaign group Article 19. “Compelling social media platforms like Facebook to automatically remove posts regardless of their context will infringe our right to free speech and restrict the information we see online. The judgment does not take into account the limitations of technology when it comes to automated filters.
“The ruling also mean that a court in one EU member state will be able to order the removal of social media posts in other countries, even if they are not considered unlawful there. This would set a dangerous precedent where the courts of one country can control what Internet users in another country can see. This could be open to abuse, particularly by regimes with weak human rights records.”
As calls for censorship mount, the global policing of speech on the internet is becoming impossibly convoluted. Will the EU now seek to punish Facebook, or whoever, if a bit of content it doesn’t like is accessible somewhere outside of its jurisdiction, and if so how? What if courts in the other country take a different view? As ever the only solution is to not censor in the first place.