The recent ruling by the Court of Justice of the European Union (ECJ) in the Glawischnig-Piesczek v. Facebook case could have major global implications for freedom of speech and expression. This ruling, which not only held Facebook accountable for comments made by a user on the platform, also established a rule stating that comments attacking the personal character of Austrian politicians can not be made anywhere in the world, despite it being perfectly legal in those countries. In doing so, the ECJ demonstrated a total lack of understanding of the modern-day technology and set a dangerous precedent by allowing one country to filter out online content globally, regardless of where the poster of that content is located.
This case started in April 2016 when the head of the Austrian Greens Party, Eva Glawischnig-Piesczek, decided to sue Facebook because a social network’s user called her a “lousy traitor,” a “corrupt oaf” and a member of a “fascist party.” Despite these comments being purely political opinion, the assertion of the Austrian politician was that these comments were defamatory and not protected by free speech. The Austrian courts supported her claim, and as such Glawischnig-Piesczek demanded that Facebook delete the defamatory comments and block all other future repetitions of such content.
After Facebook decided that they will only block the users from Austria from accessing the post in question, Glawischnig-Piesczek turned to the Court of Justice of the European Union, requesting not only the removal of the specific post globally, but also the removal of all equivalent posts, permitting nobody to access of post any similar attack on her character. As such, nobody anywhere in the world – including the United States, despite the 1st Amendment protecting freedom of speech in the U.S, would be allowed to call a politician a “corrupt oaf” on social media.
If social media platforms comply with the ECJ ruling and delete posts that are flagged with specific word structures of improper terms, an absurd amount of legitimate and unharmful content would also be deleted. This would only result in the social media platforms’ inability to ensure and provide the mechanisms for impartial online political debates while giving politicians and governments the means to enable global censorship of free speech. In a statement shortly after the ruling, Facebook argued that this will “undermine the long-standing principle that one country does not have the right to impose its laws on speech on another country.”
Following the infamous EU copyright directive, which also reinforces the need to filter improper content, this ruling sets the stage for the EU’s self-imposed role as internet police, and its determination to keep a close rein on the large tech companies, completely disregarding the impact on non-EU citizens and consumers.
An attempt at censoring large internet actors can set also a dangerous precedent that would completely limit smaller companies to compete in the digital market. Faced with a similar order, smaller online companies that don’t have the resources to manage all the compliance costs needed would have to take extreme measures to limit user posts or would even have to completely eliminate user postings. By creating a set of extreme online free speech regulations that would require enormous resources to be implemented, the EU would destroy any chance of competitiveness in the digital market.
Even if we ignore the vast amount of resources these online companies would have to invest in developing mechanisms of content filtration, the technical side of social media’s ability to monitor its own content is another reason why this ruling is highly problematic. These content filters provide both false positives and false negatives and are often unreliable because they can’t easily distinguish the use of flagged words in a context, potentially leading to massive censorship of acceptable content.
As it has been previously argued by various experts, there are currently no technological tools that are able to properly assess the specifications of equivalent content and its contextual setting. This is the reason why Facebook, the social network which invests billions into developing such tools, hired tens of thousands of content analysts to review reported content themselves, because their reliance on machines to do this type of analytical work didn’t provide effective moderation.
The Glawischnig-Piesczek v. Facebook ruling is poised to be consequential in the following debate on how the EU Member States can demand that online platforms monitor and filter inappropriate material posted by their users. Even though Mrs. Glawischnig-Piesczek, who gave the world a disturbing insight into the possibility of an EU-policed internet, called the ruling “a historic success for human rights against web giants,” there is still some hope for defending freedom of speech and expression from the European Union.
It is now up to the Austrian court to determine the scope of any injunction, and the EU Member State courts have so far shown greater reluctance than the EU to order global takedowns of online content and to impose any verdicts which can have a severe impact on free speech rights.