Facebook May Soon Begin Censoring Americans' Posts If the EU Doesn't Like Them
Thanks to a European Union court, Facebook may be forced to take down your opinions of the European Union if government officials or others are offended by them, according to a set of recommendations by an adviser at the EU Court of Justice.
The analysis, according to Reason, came from Advocate General Maciej Szpunar, who acts as an adviser to the Court of Justice. Szpunar was weighing in on the case of an Austrian politician who sought to have references to a post about her removed from the platform.
As Reason noted, the article about former European Parliament member and Green Party member Eva Glawischnig-Piesczek did “not even seem to involve ‘hate speech’ as defined under the laws of many European countries.”
A user simply disagreed with an article about giving a minimum income to refugees who came into Austria. Glawischnig-Piesczek’s photo was the featured picture on the article.
The user said Glawischnig-Piesczek was a member of “a fascist party” and called the politician a “lousy traitor of the people” and a “corrupt oaf.”
OK, so not particularly trenchant analysis there, but nothing that should be illegal and nothing that Facebook should be forced to take down, I would think.
An Austrian court, however, didn’t agree.
“As Facebook did not react to her request for that comment to be deleted, Ms Glawischnig-Piesczek sought an order requiring Facebook to cease publication and/or dissemination of photographs of Ms Glawischnig-Piesczek if the accompanying message disseminated the same allegations as the comment in question and/or ‘equivalent content,'” Szpunar’s analysis of the case noted.
“The court at first instance made the interlocutory order applied for, and Facebook disabled access in Austria to the content initially published.”
In other words, Glawischnig-Piesczek got a court in Austria to consider the comments “defamatory” and Facebook blocked access to them in Austria. But what would happen if this were done, say, outside of Austria?
Surely there wouldn’t be jurisdiction there, right?
Well, maybe. Szpunar wrote that while the European Union’s suite of regulations on the digital domain “does not regulate the territorial scope of an obligation to remove information disseminated via a social network platform, it does not preclude a host provider from being ordered to remove such information worldwide.”
“According to that directive, a host provider (and thus an operator of a social network platform such as Facebook) is, in principle, not liable for the information stored on its servers by third parties if it is not aware of the illegal nature of that information. However, once made aware of its illegality, the host provider must delete that information or block access to it,” he wrote.
And, as Bloomberg reported Wednesday, the EU’s laws regarding platforms like Facebook have some real governmental heft behind them.
“Scrutiny of Facebook in the EU has intensified since the bloc introduced strict new privacy rules a year ago, giving data regulators for the first time real teeth and the power to fine companies as much as 4% of annual sales for the most serious violations. Antitrust regulators too have been probing the social network over how it tracks users’ internet browsing,” Bloomberg reported.
“The ruling by the EU court, expected in a few months, will help clarify to what extent social media companies such as Facebook must police posts by users worldwide. The case seeks to establish how far-reaching EU law, or the powers of the bloc’s courts go, in protecting EU users of online social media companies that can be accessed from around the globe.”
Some of this speech, mind you, would be protected in other countries.
In the United States, you can call anyone a “corrupt oaf” and a “lousy traitor of the people” thanks to the First Amendment. In fact, I’m sure there are about a million versions of that on Twitter and Facebook right now regarding Donald Trump, Barack Obama or any major politician.
That might not be particularly mature, but that’s fine. That’s protected speech. And if Facebook decides not to take it down — which it shouldn’t — that’s its right.
Yet now, at least as it applies to politicians within the European Union, all you have to do is write something that gets on the wrong side of a court in countries with very different ideas of what “free speech” means and Facebook would have to take it down no matter where you are, according to Szpunar’s analysis.
And if Facebook doesn’t, the penalties could be severe.
How much this is going to affect people outside the European Union is really anyone’s guess. Most of us don’t find ourselves opining on the perfidies of Jean-Claude Juncker or Emmanuel Macron very often. I occasionally do, although I doubt any of my content would end up being taken down because of a decision in a European court.
The chances of that, however, ought to be zero. I have every right to call someone a “corrupt oaf,” although I hope I’d use better language. There’s nothing hateful about that. There’s nothing that breaks Facebook’s terms of service. We shouldn’t even be talking about this.
To be fair, this isn’t the official opinion of the court:
“The Advocate General’s Opinion is not binding on the Court of Justice,” Szpunar’s analysis notes. “It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.”
However, Bloomberg noted that the “court follows the advice of its advocates general in a majority of cases.”
In a statement, Facebook said that the advocate general’s opinion “undermines the long-standing principle that one country should not have the right to limit free expression in other countries” and that when the EU court rules, it “will clarify that, even in the age of the internet, the scope of court orders from one country must be limited to its borders.”
This is a clear overreach by European bureaucrats and it could set a dangerous precedent. Let’s hope that Facebook is willing to stand up for all of the principles it enumerated in its statement.
Given Facebook’s history, however, one fears capitulation may very well be an option for the social media giant.
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