This ruling by the European Court of Justice (ECJ) causes a sensation: Internet platforms such as Facebook can be forced by national courts to seek further statements with the same meaning in the case of comments that have been declared unlawful, and also to block or delete them. In addition, in the opinion of the European Court of Justice, courts can also order a worldwide deletion of problematic content.
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The decision from Luxembourg is as surprising as it is contentious. While some civil rights activists welcome the verdict, there is resistance from others. Here are the answers to the most important questions.
What is it all about?
The European Court of Justice ruled on Thursday that courts under EU law must force Internet platforms such as Facebook to track down and remove unlawful postings across individual territories or Facebook versions. Such orders can be extended to similar contributions by third parties and - under certain circumstances - also to comments of the same meaning.
According to the verdict, Facebook has to search for these posts themselves and make them inaccessible if required by the national court. Prerequisite: The online platform must be able to automatically recognize the posts, that is, without having to turn off employees for searching. This applies, for example, in the event that an illegal contribution is shared by different people. Basically, it is about postings with no or minimal deviations from the original.
The former Austrian Green Party politician Eva Glawischnig-Piesczek had demanded that insults against her be extinguished outside of Austria. Three years ago, Facebook had comments in which the politician was called, among other things, "lousy traitors", namely initially hidden only in their home country.
Glawischnig-Piesczek also wanted to know such comments away from Austria - and at the same time all similar hate contributions. The ECJ then considered an application from the Austrian Supreme Court. The judges of the ECJ finally decided that the claim was compatible with EU law. The judgment in the case Glawischnig-Piesczek is now made in Austria.
What do users have of the verdict?
In the case of problematic contributions, an internet platform such as Facebook will only have to be active in future if the company learns about such contributions. However, if a court asks the network to delete an illegal comment, chances are better that the post will be removed not only in the user's home country, but everywhere on Facebook. From the viewpoint of the plaintiff Eva Glawischnig-Piesczek, the judgment is a "historical success for the protection of privacy against Internet giants".
Glawischnig-Piesczek told the APA news agency that the verdict will provide assistance to anyone who is offended on the Net. Above all, these people wanted a quick deletion of the corresponding entries wherever possible.
The civil rights activists of Reconquista Internet praise the commitment of the politician. "We welcome the verdict," said a spokesman to the SPIEGEL. "We are convinced that the verdict is an important sign at the right time." It is also glad, however, that "only those contributions should be actively deleted, which are in a similar, hurting the data subject", while legally irrelevant statements would be protected.
What is criticized in the decision?
Some data protection experts go too far in the judgment of the ECJ. IT lawyer Niko Härting considers questionable the transfer of state law to other states. "What would Europeans say if a court in the US (or China, Russia or Turkey) had the same view," the lawyer asked on Twitter.
New: #ECJ rules that a provider may request to remove content worldwide under EU law. What does Europeans say if a US (or Chinese, Russian or Turkish court) takes the same view? #EULaw #extraterritorial #reach https://t.co/gFuO8Y0Rtc
- Prof. Niko Härting (@nhaerting) 3 October 2019Stanford scientist Daphne Keller even sees the decision as the "worst-case scenario". She writes on Twitter that such judgments "could have a global effect and possibly restrict freedom of expression in other countries".
The CJEU's ruling in Glawischnig-Piesczek is out, and it is basically the worst case scenario. https://t.co/YgEHv20pJd 1 /
- Daphne Keller (@daphnehk) October 3, 2019Data protectors of the Austrian association Epicenter.works fear that the judgment could also affect legal contributions. "How that is to be implemented in concrete, nobody seems to be so clear right now," said a spokeswoman to the SPIEGEL. If Facebook has to delete the same contributions, then this would lead to "a proactive filtering is necessary", which was previously believed to be illegal. "This filtering will happen with upload filters, which are very difficult to detect context."
How does Facebook react?
An official Facebook statement states that the ECJ ruling raises "critical questions about freedom of expression". It undermines the principle that "one country does not have the right to impose its rules of expression on other countries". Therefore, one needs clear definitions, what is meant by "same" and "similar" statements.
Behind the scenes, it is even considered almost impossible that software can take on the task of classifying contributions as defamation, insult or libel. These are too subtle nuances, it says from business circles. It is almost impossible to automatically capture the same statements by software.
The problem is that even an additional word could change the context. Even with the same statements, an assessment is difficult. After all, software also has to assess whether a satire platform shares the post or a news site cites the insult in order to report it. Software pushes to its limits, so that almost always a human being must assess the statement.
And, also and especially on Facebook, cases from the past have shown that even human checks are not a guarantee per se that the context of a statement is correctly assessed.
