Facebook Risks EU Court Order to Censor Hateful Posts Globally

(Bloomberg) -- Facebook Inc. could be forced to patrol its platform across the world to remove offensive and hateful posts by users in the European Union, in another potential landmark privacy ruling from the bloc’s top court.

Days after the EU Court of Justice decided against imposing a global “right to be forgotten” on Google Inc., its judges are set to rule Thursday on a parallel case that Facebook warns could threaten freedom of speech if a worldwide obligation to hunt down content is imposed on the company and other technology giants.

“Victims of such infringements often struggle with the fact that content is removed upon a notice, only to re-appear shortly after,” resulting in “an endless game of ‘whack-a-mole’, said Mirko Bruess, a lawyer with German law firm Waldorf Frommer. The court will decide how far Facebook’s obligations go to ensure such content stays away from its platform.

In a June opinion that was heavily criticized by Facebook, an adviser at the Luxembourg-based EU court said the social media giant could be ordered to remove offensive content posted by users in the EU and also look for similar posts worldwide. The EU’s law for digital services and electronic commerce “does not regulate the territorial scope” of such an obligation, according to Advocate General Maciej Szpunar’s advice.

‘Enormous Repercussions’

The ruling “has potentially enormous repercussions for hosting and platform providers,” said Philip James, a technology lawyer with Sheridans in London.

“Whilst the current case focuses on hateful content, rather than copyright, there is a growing trend for the courts to fall favorably towards rights holders and those affected by hate speech,” said James. “There is a real likelihood therefore that Facebook may end up with a considerably greater burden to police its content than it currently has.”

Platforms from Facebook to Google’s YouTube won a nod of approval from the EU earlier this year for tackling hate speech posted online as part of a code of conduct signed with the commission in 2016. The companies vowed to tackle online hate speech within 24 hours, once made aware of it.

Despite the platforms’ efforts, EU officials have been mulling new bloc-wide rules, building on existing legislation in Germany, that could hit big tech firms with possible fines if they fail to remove illegal hate speech quickly enough. The discussions fit into broader plans by the EU to overhaul liability rules for platforms.

National Courts

The court’s ruling will also weigh how far the powers of national courts go in ordering global tech firms to remove posts. Facebook, in a statement on the court’s non-binding opinion in June, said that “the scope of court orders from one country must be limited to its borders.”

Facebook declined to add further comment ahead of Thursday’s decision.

Austria’s Supreme Court last year sought the EU judges’ guidance in a dispute between Facebook and Eva Glawischnig-Piesczek, a former Green member of the European Parliament, who was the subject of a number of offensive posts on a Facebook user’s account. She asked for an order against the company to block any further publications of pictures of her if the text alongside them included similarly offensive content.

The Austrian court also asked whether under EU law companies could be forced to remove any content from its platform “with an equivalent meaning” to illegal information it has been made aware of. Lawyers said this is an issue also faced by copyright owners on platforms such as YouTube, or Instagram, where uploads of previously taken down copies keep popping up online.

Should the EU court find that Facebook “has a broad obligation to monitor its platform for repeated infringements” it could not only help victims of hate speech, but also affect “parties hurt by copyright or trade mark infringement online,” said Bruess.

The case is: C-18/18, Eva Glawischnig-Piesczek v Facebook Ireland Limited.

©2019 Bloomberg L.P.

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