Europe's top court has ruled individual countries can force Facebook to take down illegal content, including hate speech, both inside the EU and across the world.
The European Court of Justice made the decision after a Green party politician in Austria sued Facebook, demanding the social network remove a set of defamatory comments about her, and any “equivalent” messages posted by others, globally.
The ECJ said there was nothing in EU law to stop national courts from asking Facebook, through its Irish subsidiary, to search and delete duplicate posts of illegal content and that such take-downs should apply worldwide.
Facebook said the ruling raised “critical questions around freedom of expression” and that it “undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country.”
Eline Chivot, analyst at the Center for Data Innovation, said the ruling risked opening a “pandora’s box” where EU court rulings can apply in countries that do not have similar libel or hate speech laws.
“What is prohibited in one nation may not be in another, including within the EU and between its member states,” said Ms Chivot. “Expanding content bans worldwide will undermine internet users’ right to access information and freedom of expression in other countries. This precedent will embolden other countries, including those with little respect for free speech, to make similar demands.”
The ruling will compel Facebook to proactively search for duplicate posts, as long as the material is already subject to a removal order and “identical” or “equivalent” to the original post.
Users who have been defamed, or subject to hate speech, have previously complained that similar harmful material can be repeatedly posted to avoid the original removal order.
Facebook said that national courts would now have to clearly define what “identical” and “equivalent” posts look like in practice and said: “We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”
The ECJ was asked to provide clarity on the scope of Facebook’s responsibility to remove illegal content after the question was referred by Austria’s High Court.
The ruling helps to clarify a controversial debate inside the EU about how far tech companies should be liable for content uploaded by their users. Member states like Germany have introduced tough hate speech laws where tech platforms are subject to fines if they fail to police illegal material.
The European Commission has stayed away from regulating hate speech but is considering introducing a sweeping new "Digital Services Act" to clarify the level of responsibility that social media companies have for illegal content posted by users.
Under the EU’s current e-commerce directive, tech groups are not required to monitor all content on their platforms under a key legal protection known as “safe harbour”, which exempts companies from direct legal responsibility for user-uploaded material.
In a carefully worded judgment, the ECJ said the e-commerce directive did not prevent platforms from actively policing material that was very close in nature to already removed content. Judges said removal orders should apply worldwide as long as this does not violate “the relevant international law”. “It is up to member states to take that law into account,” said the ECJ.
The commission said the judgement was “limited to court orders” and would not apply when ordinary Facebook users flag content as alleged hate speech or illegal material.
“Today’s ECJ ruling has clarified that nothing in the EU’s e-commerce directive prevents the global application of a court order worldwide,” said Nathalie Vandystadt, a spokeswoman from the European Commission. – Copyright The Financial Times Limited 2019