Did a legal ruling against Facebook just open the door to a bizarre new game of censorship?
Social media platforms are under pressure.
They are being asked to take action on fake news, extreme content and lots of other other internet nasties.
That pressure grows with, among other things, every Facebook Live murder.
The yoke of regulation seems inevitable at this point; the platforms may even be welcoming of it.
They are beaten from pillar to post with each new atrocity that arises.
Some guidance on what action they need to take — by definition of law or regulation — would therefore help them to stop looking like the boogeymen of the internet.
The regulation debate raised its head again amid discussions of the European Court of Justice’s recent ruling on a defamation case in Austria.
The ECJ ruling concerned an Austrian politician, Eva Glawischnig-Piesczek, who asked Facebook to take down content she believed was defamatory.
Facebook refused. She sued Facebook at an Austrian court and won.
Armed with her win, Glawischnig-Piesczek then asked Facebook once again to remove the content and any other content like it, not just in Austria, but worldwide.
The case ended up at the ECJ and that’s where we come in.
The ECJ published its full ruling stating that Facebook — and by extension all platform hosts or providers — needs to remove that content; worldwide.
The ruling attempts to set a precedent that any content officially declared illegal by EU member states will need to be taken down, worldwide.
In an statement emailed to Zdnet, Facebook said that the decision “undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country.
It added: “We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”
But what does the ruling actually mean?
By my reading, it creates a basic two-step process.
First, content needs to be declared illegal by an EU member nation’s courts.
That means that if someone considers themselves to be defamed in a Facebook post, they still need to go through their nation’s legal system to get a defamation recognised in law.
Secondly, that legal recognition is then presented to Facebook (or others), which has to remove the post and any similar posts; worldwide.
But can a defamation ruling in Austria really apply in China, for example?
This raises two further questions. Does anyone think for a second non-EU countries will allow European courts to censor their media?
Most likely, the complex web of international law and political considerations means no country outside the EU would enforce it.
But, perversely, might these nations welcome the ECJ ruling?
Come at it from the other direction. If Russia (for example) thinks that it can takedown internet content it dislikes - then might it not grab that opportunity with both hands?
What if those non-EU nations decided to recognise the law and use it for their own benefit - applying it selectively and politically to stretch the tentacles of censorship westward.
Might Russia replicate this legal framework and create its own identical laws with similar powers to the ECJ ruling?
Lets consider some examples — the Novichok poisoning of Sergei Skripal in Salisbury in 2018.
Investigative journalism site Bellingcat identifies the suspects and publishes their identities. The UK media follows suit. Russia denies its citizens are involved.
Russia could consider those articles a defamation of its citizens and seek to have the content ruled as defamatory or ‘illegal’ in their own courts — as per the ECJ ruling.
Would Facebook be tasked with removing every such Salisbury story worldwide?
The Saudis may not be best-pleased at the ongoing international outcry around the still sickening-beyond-words whitewash over the murder of Jamal Khashoggi.
A defamation of the Crown Prince, Saudi Arabia could rule. Takedown.
Might America have any feeling currently about stories being published on the death of motorcyclist Harry Dunn, 19, and the role in that incident of Anne Sacoolas, a US diplomat’s wife? Takedown.
“There is a lack of transparency about content takedowns, and users are often not given the opportunity to appeal decisions,” said Thomas Hughes, Executive Director of Article 19, an international human rights organisation that defends free speech.
“This ruling could make this lack of transparency worse as European states could get to determine which content is taken down in other jurisdictions.
“Other countries, including those with poor human rights records, could pass laws with similar provisions, creating a situation where social media companies are implementing content takedowns across different jurisdictions.
“The ruling demonstrates the difficulty States have in regulating internet content that does not sit within one jurisdiction.
“In particular, the ruling does not address the issues that what is unlawful in one country may not be unlawful in another.”
Instead of adding some clarity to the process, might this ruling have just opened up a lottery where countries use the information selectively or politically.
The EU’s ruling won’t hold much water outside its borders, according to a European legal expert.
“I do not think the decision goes (that) far,” said Ted Shapiro, a partner at Wiggin’s Brussels office and an specialist in international copyright law.
“The reach and jurisdiction of EU national courts are limited not only by EU and international law (and these are already considerable limitations) — but also by the laws of third countries.
“A court order by EU national court may be enforceable in the EU but it does not necessarily follow that it will be enforceable elsewhere — and same goes for the enforceability of judgments from third countries in the EU.
“US courts for example will refuse to enforce foreign court orders if they find them to be repugnant to the US constitution.
“Operators like Google frequently go to court in the US and elsewhere to limit the reach of court orders from other countries.
“As such, were China and Russia to attempt to enforce their censorship in the EU Member States, it would need to be considered by the Member State courts, which would be required to consider, among other things, their constitutions, the EU Treaties, including the Charter of Fundamental Rights, and the European Convention on Human Rights.”
So the problem for social media platforms remains this.
They are under pressure to show they are acting and might tacitly welcome regulation to give them a direction of travel.
But there is no world body that can create or enforce the regulation required, so we fumble on with one rule for one region and another rule in another.
I can’t decide if a UN for the web is a pipe dream or a James Bond plot.
But what price an independent social media regulator with worldwide reach funded by the platforms themselves?
The ECJ ruling has good intentions, but it has unfortunately opened the door to the possibility of a new type of abuse.
I’m with Facebook on this one.
