A court case confronting Facebook with an Austrian MP tries to shed some light on the difficult conundrum around freedom of expression, hate speech, and internet platform liability. The case at hand is the Eva Glawischnig-Piesczek v Facebook Ireland Limited decision of October 3, 2019, in which the Court of Justice of the European Union (CJEU) declares that a court may order hosting platforms to remove not only libelous comments, but also content identical or equivalent to the one that has previously been declared illegal, and this with global reach.
The decision has been quite controversial and may potentially have great impact on the European digital landscape.
But let's first look into the facts of the case: the Austrian green party member Eva Glawischnig-Piesczek was victim of a derogatory comment on Facebook, that she asked the platform to remove. Facebook refused and the controversy escalated to the Commercial Court of Vienna. The court decided in favour of Ms. Glawischnig-Piesczek and ordered Facebook to remove the comment globally, as well as any identical or equivalent comments. Facebook complied with the ruling, but only in Austrian territory, while appealing the decision to a higher court.
In the second instance, the sentence was confirmed except for Facebook's obligation regarding equivalent comments. Requesting this would be, in the opinion of the court, in conflict with the current European internet service providers regime, which does not require platforms to generally monitor what is published, but only to act when they are notified of an infringement.
Finally, the dispute reached the Austrian Supreme Court (Oberster Gerischthof) who decided to send a series of questions to the CJEU for their further clarification. Namely, they asked whether a court could request removal of 1) content identical to another that is illegal, 2) content that is equivalent; 3) and can these removals have global reach?
The CJEU replied in the affirmative for all three questions, as we advanced above.
There are several aspects in this decision that may be deemed controversial. First, the CJEU does not accurately define what “equivalent” is. Rather they say it's a message where words are different but the message conveyed is the same. This is a very ambiguous concept that will require a human employee to make a judgement call each time, as it would be next to impossible to implement this control with an automated automated system. This raises fear of growing digital censorship by platforms in order to prevent legal liability.
Another aspect that has raised some eyebrows is the fact that the decision authorizes EU courts to issue orders with a worldwide scope, when it could be expected that a European court could only act within the borders of its own country or of the European Union. This can have unexpected consequences, such as forcing platforms to comply with an EU order in a country more liberal in regards to freedom of speech (for instance, the US).
The balance between freedom of speech and other rights is today of great concern, as we witness the harm unreined hate speech and fake news are doing to our democracies. Indeed the current legal framework was created well before we could even imagine the phenomenon of online hate. This decision may be an exception or a sign of what there is to come for internet platforms in Europe. In any case, it will sure have an impact on the current debates that will result on the new Digital Services Act and the future of the single digital EU space.
You can read the full decision here.
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