The European Jurisdiction just imposed common sense on Facebook
The cat and mouse game is over, Mark Zuckerberg.
Imagine you own a large white house wall alongside the most crowded street in the city. Ten thousands of people pass by each day. You let people willingly write on the house wall, as you make cash with some advertisement written on that as well, and the many „posts“ on your wall attract attention from bypassers. Some people start to write insults against someone on the wall, cursing the person or lying. You stand next to the wall, pretending not to notice what’s going on. Then a police officer comes by and points at the latest insult. You nod, and overpaint it, and walk away – leaving all the other indignities of the same harsh kind against the person untouched. One insult is gone, all the others remain and are read by many people.
Every person with common sense would check the wall for a similar unlawful content. Not Facebook. Facebook is the house owner that just walks away after erasing the illegal content being pointed out to it. Common sense – and a certain feeling of responsibility – does not apply to Facebook, or so at least it seems.
This case is not fictional. The European Court of Justice just had to rule on it. What is the European Court of Justice? The European Court of Justice (ECJ), officially only the Court of Justice (French: Cour de Justice), is the supreme court of the European Union in matters of European Union law.
And what did it decide? To sum it up:
- Facebook must remove or block access to the identical content as the content deemed unlawful;
- Facebook must remove or block access to equivalent content and
- Facebook must remove or block access to the content worldwide!
Mme Eva Glawischnig-Piesczek, who was a member of the Nationalrat (National Council, Austria), chair of the parliamentary party ‘die Grünen’ (The Greens) and federal spokesperson for that party, sued Facebook Ireland in the Austrian courts. She 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 similar 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.
Facebook did not accept that, by Austrian law, it did not only have to remove the illegal post that had been reported but also to scan for similar unlawful content worldwide.
Facebook lost the case. The EJC declared that member states of the European Union can force Facebook
- to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;
- to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the data concerned by such an injunction are limited to information conveying a message the content of which remains;
- to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law, and it is up to the Member States to take that law into account.
Especially the last point will have a tremendous impact on Facebook, at least when its unlawful content is reported to it by or within a member state of the European Union. If that said information is illegal by the law of the Member State, Facebook must block access worldwide. International law is to be taken into consideration.
Facebook’s cat and mouse games are over. Users that are hurt by unlawful content on Facebook can, at least if they are citizens of the European Union and applicable national law protects them, demand from Facebook to delete the illegal content worldwide.
Is free speech endangered?
One could argue now that free speech could be severely endangered. How could this happen? Let us assume you write a very critical comment about a person that is not unlawful by German law, but unlawful by French law. If said person is protected by French law, it can demand the removal of the content on a worldwide base. Is that fair?
As a lawyer, I want to line out the following: Let us assume you are profoundly insulted on Facebook. Protected by your national law, Facebook removes the access of users from your national country to the content. But for the rest of the world, the content is still accessible, and everyone will read it. Is that fair?
The EJC obviously had the second case in mind. It wants to protect victims. Therefore the content is to be removed worldwide. I acknowledge that this might endanger free speech to some degree, but considering all member states of the European Union are democratic states with constitution protecting free speech as well, I do not think we see real danger. Instead, the EJC ruling might imply the actual protection of victims, who often felt helpless against Facebook’s global power of spreading unlawful content without any restriction.
f you understand how hard unlawful content, such as insults or fake news, can hurt a victim when it is globally spread on social media, it becomes clear why such jurisdiction by the EJC will even help to save our freedom and civil rights. If we decide to leave the treatment of civil rights and the protection of victims on the internet to globally acting corporate firms such as Facebook, we choose to give up our civil rights to the power of the stronger user. If we let Facebook define which posts it erases even if the content is unlawful, playing the innocent bystander who is not forced to search for similar criminal content, we give up basic principles of our society: To not hurt each other. To redeem the other and minimize the damage we are responsible for. It’s also common sense – if someone points out my behavior is illegal, I must change it, the same conduct, and the equivalent action.
The rules of common sense now apply to Facebbok as well in regard of illegal content.