Judith Bergman: The Court of Justice of the European Union Limits Free Speech

On October 3, the Court of Justice of the European Union (CJEU) ruled in a judgment that Facebook can be ordered by national courts of EU member states to remove defamatory material worldwide:

"EU law does not preclude a host provider such as Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal. In addition, EU law does not preclude such an injunction from producing effects worldwide, within the framework of the relevant international law which it is for Member States to take into account."

The ruling came after the Austrian politician Eva Glawischnig-Piesczek, chairman of Die Grünen (The Greens) party, sued Facebook Ireland in the Austrian courts.
According to the Court of Justice of the European Union:

"She [Glawischnig-Piesczek] is seeking an order that Facebook Ireland remove a comment published by a user on that social network harmful to her reputation, and allegations which were identical and/or of an equivalent content.
"The Facebook user in question had shared on that user's personal page an article from the Austrian online news magazine oe24.at entitled 'Greens: Minimum income for refugees should stay'. That had the effect of generating on that page a 'thumbnail' of the original site, containing the title and a brief summary of the article, and a photograph of Ms Glawischnig-Piesczek. That user also published, in connection with that article, a comment which the Austrian courts found to be harmful to the reputation of Ms Glawischnig-Piesczek, and which insulted and defamed her. This post could be accessed by any Facebook user."

The judgment has brought concern among free speech organizations. Thomas Hughes, the executive director of ARTICLE 19, a non-profit organization that works on "protecting the right to freedom of expression around the world," said:

"This judgment has major implications for online freedom of expression around the world.
"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 ruling also means 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."

According to ARTICLE 19:

"The judgment means that Facebook would have to use automated filters to identify social media posts that are considered to be 'identical content' or 'equivalent content'. Technology is used to identify and delete content that is considered illegal in most countries, for example, child abuse images. However, this ruling could see filters being used to search text posts for defamatory content, which is more problematic given that the meaning of text could change depending on the context. Although the ruling has said only content that is essentially the same as the original unlawful post should be removed, it is likely that automated filters will make errors".

The judgment "undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country," Facebook commented in a statement.

"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."

The ruling "essentially allows one country or region to decide what internet users around the world can say and what information they can access," said Victoria de Posson, senior manager in Europe at the Computer & Communications Industry Association, an industry group that includes Google and Facebook as members.

The judgment does indeed appear to be opening up a Pandora's Box for the ever-shrinking space for free speech in Europe and potentially worldwide, although it is still unclear at this point, how the judgment might affect free speech worldwide.

Government efforts in Europe to censor free speech have long been ongoing: in Germany, the controversial censorship law, known as NetzDG, which came into effect on October 1, 2017, requires social media platforms, such as Facebook, Twitter and YouTube, to censor their users on behalf of the German state. Social media companies are obliged to delete or block any online "criminal offenses" such as libel, slander, defamation or incitement, within 24 hours of receipt of a user complaint. Social media companies receive seven days for more complicated cases. If they fail to do so, the German government can fine them up to 50 million euros for failing to comply with the law.

The new judgment from the Court of Justice of the European Union, presumably, could mean that a German court could order what it deems to be illegal content, or its equivalent, under NetzDG to be removed in other EU member states that do not have a similarly draconian censorship law.

France is looking to adopt a similar law to that in Germany: In early July, France's National Assembly adopted a draft bill designed to curtail online hate speech. The draft bill gives social media platforms 24 hours to remove "hateful content" or risk fines of up to 4% percent of their global revenue. The bill has gone to the French Senate. Again, if the bill becomes law, the judgment from the Court of Justice of the European Union could mean that French courts would be able to demand that Facebook remove what the courts consider illegal content or its equivalent under French law.

The judgment from the Court of Justice of the European Union, in other words, appears to give EU member states unprecedented power to determine public discourse online -- to determine what citizens can and cannot read. It naturally remains to be seen exactly how the judgment will be interpreted in practice by national courts of the EU member states, but the prospects now look even bleaker for the future of free speech in Europe.

Judith Bergman, a columnist, lawyer and political analyst, is a Distinguished Senior Fellow at Gatestone Institute.