EU court hits Facebook, orders global removal of illegal content
The European Union’s highest court has delivered yet another controversial and far-reaching ruling, this time targeting Facebook. The ruling requires the platform to remove content that has been deemed unlawful by individual EU nations, but most importantly, the ruling demands that information is removed globally and not just within the borders of a specific state.
The Court of Justice of the European Union is the highest court in the EU, and it recently delivered a landmark ruling in favor of Google. That case centered on the modern idea of the “right to be forgotten”, ruling individuals do have the right to ask Google to de-index certain contentious search results. However, the recent ruling noted any de-indexing request to Google cannot extend past EU borders.
Now, the same EU court has made a seemingly contradictory ruling. This time aimed at Facebook, the ruling affirms the platform is not explicitly legally responsible for defamatory or unlawful content, but it must remove contested content if that content is deemed unlawful by a specific EU member state. And significantly, this removal of content must be globally applied, regardless of whether that content may be legal in a separate jurisdiction.
Much like the prior Google case, this court ruling began with a single local story. In early 2016 a Facebook user posted several comments on their personal page. The comments were directed at Austrian politician Eva Glawischnig-Piesczek. After both the user, and Facebook, refused to remove the comments, Glawischnig took the case to court. Austrian courts indeed deemed the comments defamatory, ordering Facebook to remove then, which the platform promptly did, but only in Austria.
Over the intervening years the case moved through different courts before finally reaching the highest court in the European Union. The broad aspects of the case hinged on two main points. One was whether Facebook can be compelled to globally remove content that has been deemed defamatory or illegal in a single EU country. The second point was whether Facebook should be compelled to automatically remove “identical” or “equivalent” content once something has been identified as illegal.
On Thursday October 3rd, The Court of Justice of the European Union delivered its final judgment, and it was not good news for Facebook. While the ruling does affirm Facebook is still not liable for illegal content it is either unaware of, or removes expeditiously upon notification, that is about it for the good news. The rest of the judgement notes infringing content must be removed worldwide, plus, the platform must also remove “identical” or “equivalent” content using “automated search tools and technologies” if necessary.
Facebook unsurprisingly delivered a swift and comprehensive statement criticizing the ruling, raising concerns it forces internet companies into a position of policing speech in ways that decidedly stamp on freedom of expression.
“It undermines the longstanding principle that one country does not have the right to impose its laws on speech on another country,” Facebook said 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.”
Facebook quite reasonably points out the problematic ambiguity in the EU court’s lack of any clear definition as to what “equivalent” content actually means.
“In order to get this right, national courts will have to set out very clear definitions on what 'identical' and 'equivalent' means in practice,” the company notes in its statement. “We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”
The global requirement of the content takedown ruling is perhaps the most concerning aspect of the judgement due to the broad spectrum of different free speech laws around the world. In theory this ruling implies a country with very strict laws against anti-government speech may be able to order Facebook to globally remove content that it deems unlawful.
Thomas Hughes, director of Article 19 an international organization advocating for freedom of speech, suggests this ruling has major implications for online expression across the entire world.
“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,” says Hughes. “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.”
This latest ruling is certainly not the last we will hear on this issue. Despite it being the end of the road for this particular case, the immense ambiguity in the ruling will inevitably lead to smaller court battles in the near future. And, the contradictory nature between this judgement and the Google judgement from a fortnight ago, suggests the legal world is still grappling with how to balance the global nature of internet publishing with the many and varied local rules governing free expression from country to country.