A recent judgment by the top court of the European Union allows individual European states to force social media companies to remove content globally, raising a concern that one country can force removal even in countries where said content is legal.
The decision may have broad implications for freedom of expression, especially in the United States, where the Constitution guarantees extensive free-speech protections.
In the United States, caps on free speech are limited to actions such as incitement to imminent lawless action and defamation—for which the legal standard is comparatively high, especially when the target is a public figure. Some European countries, however, not only have broader defamation laws, but also criminalize “hate speech”—a category open to wide interpretation, some experts say.
The Oct. 3 judgment by the Court of Justice of the European Union stems from a case involving former Austrian lawmaker Eva Glawischnig-Piesczek, who was, until 2017, spokeswoman for the left-leaning Austrian Green Party.
On April 3, 2016, a Facebook user posted a news article from Austrian news site oe24.at headlined, “Greens: Guaranteed Minimum Income for Refugees Should Stay.”
“Lousy traitor,” the person commented in the post, according to an Austrian court document (pdf). “This corrupt klutz has not earned a single penny of honest labor in her entire life, but has blown our tax money on these invaders. Finally ban this green fascist party.”
While comments of the sort are not uncommon in U.S. social media discourse, Glawischnig-Piesczek was able to get an Austrian court to order Facebook to remove the post for insult and defamation. Facebook responded by blocking access to the post from within Austria, but, on appeal, an Austrian court ruled against such a measure.
When the Austrian Supreme Court asked the EU court whether global removal is permissible under European law, the EU court concluded that it is, as long as the local law is “consistent with the rules applicable at international level.”
“It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules,” the judgment stated.
Glawischnig-Piesczek also wanted any “equivalent” content to get deleted, which the judgment also green-lighted, as long as “differences in the wording of that equivalent content” wouldnt require the social media company “to carry out an independent assessment of that content.”
The judgment “dealt a major blow to free speech, paving the way for a single nation to act as a global censor and require that online platforms act as its minions in doing so,” wrote Jennifer Daskal, American University law professor, in an Oct. 3 Slate op-ed.
Facebook didnt immediately respond to a request for comment.
Social Media Censorship
While Facebook seems to have pushed back against Glawischnig-Piesczeks demands, social media companies have on the whole moved away from free speech and toward censorship in recent years, according to a 2018 internal Google research document leaked to Breitbart.
Because a few companies, such as Google, Facebook, and Twitter, control most of the information flow in the United States and beyond, their engaging in censorship effectively bypasses constitutional free speech protections, according to Michael Rectenwald, author and former liberal studies professor at New York University.
“Big digital,” as he calls the handful of massive tech companies, are now engaged in “directing, constraining, and framing of online behaviors,” he said in a Sept. 28 talk at the Libertarian Scholars Conference at Kings College in New York.
“As such, big digital may be a means by which the oversight and control functions that were formerly the province of national governments have been delegated to the market.”
While the companies claim to be politically neutral in their content policing, Rectenwald argues otherwise.
“Political ideology is coded into the very DNA of big digital,” he said.
One way big digitals politics manifest is through their “hate speech” policies, he argued.
Google and other tech companies have centered their “hate speech” rules on countering ideologies of supremacy, but more people have been slaughtered in the name of equality than supremacy, Rectenwald said.