European Court Ruling Raises Questions About Policing Speech

By Monika Bickert, VP, Global Policy Management 

Imagine something you wrote and shared on Facebook was taken down, not because it violated our rules, and not because it broke the law in your country, but because someone was able to use different laws in another country to have it removed. Imagine as well that your speech was deemed illegal not by a judge who carefully weighed the facts, but by automated tools and technology. 

This scenario became much more likely last week when the Court of Justice of the European Union ruled that European Union countries can order the removal of content not only in their own country, but all over the world. The ruling also opened the door for courts to order the removal of content that is similar to the illegal speech, meaning that something you posted might be removed even if you knew nothing about the earlier post that a European country had deemed illegal. 

The ruling arose from a personal defamation case brought by an Austrian politician. The post in question shared a news article in which the Austrian politician had outlined her and her party’s views on immigration, together with a comment from a Facebook user strongly critiquing the Austrian politician. 

Although some people might find the post unwarranted or upsetting, it was not against our rules. We prohibit threats of violence against politicians, as well as harassment and hate speech, but we allow people to criticize elected officials and their policies. We believe this is an important part of the right to freedom of expression afforded under Article 19 of the Universal Declaration of Human Rights. Nevertheless, we respect local laws when their limits on free expression meet the legitimacy, necessity and proportionality tests required by human rights standards, so when a court in Austria found that this violated Austrian law, we made the post unavailable in Austria.  

This was not enough for the Austrian court, which asked that we remove this post worldwide and also remove similar content criticising this politician. The matter was referred to the Court of Justice of the European Union. 

The Court’s ruling last week raises critical questions for freedom of expression, in two key respects. 

First, it undermines the long-standing principle that one country does not have the right to impose its laws on another country. This is especially important with laws governing speech, because what is legally acceptable varies considerably in different parts of the world and even within the EU. The ruling also opens the door for other countries around the world, including non-democratic countries who severely limit speech, to demand the same power. 

Second, the ruling might lead to a situation in which private internet companies could be forced to rely on automated technologies to police and remove “equivalent” illegal speech. This is especially troubling for situations, like this one, where the speech is political in nature. 

While our automated tools have come a long way, they are still a blunt instrument and unable to interpret the context and intent associated with a particular piece of content. Determining a post’s message is often complicated, requiring complex assessments around intent and an understanding of how certain words are being used. A person might share a news article to indicate agreement, while another might share it to condemn it. Context is critical and automated tools wouldn’t know the difference, which is why relying on automated tools to identify identical or “equivalent” content may well result in the removal of perfectly legitimate and legal speech. 

Organizations around the world have expressed fears about this ruling and its impact on freedom of speech, including Article 19, CCIA, Access Now and EDRi. Many people have also voiced their concerns about private companies standing in the place of courts to police content and determine what is legal or illegal, particularly when it comes to speech criticising a public figure. 

National courts will play the primary role in implementing this ruling. We hope that in doing so, they weigh the effects of their injunctions on free expression rights and set clear definitions of ”identical” and ”equivalent” speech. We also hope that in the interest of respecting the rights of people in other countries, they will limit their injunctions or blocking of access to information to their own geographical boundaries.  

See Mark Zuckerberg’s comments on this issue below from last week’s public Q&A.

“There was this European Court of Justice ruling on content and speech which basically said that one country in Europe presumably can enforce its speech rules outside of the country itself which, I think, is just a very troubling precedent to set. A lot of what we do internally is focused on giving people a voice, on enabling more freedom of expression, allowing people to express all the things they want and there are a lot of challenges to that. Some are cultural. There are safety issues. We want to make a welcoming community. Some of the stuff people want to post there are real issues and we need to deal with that, but there are a lot of policy and legal issues around the world and that’s an area where we are constantly engaging with different governments and pushing back. The current set of things that we do are: when a government is democratic and has good rule of law, we generally will follow the local laws in that country. So if someone posts something we won’t show it in that country if it is against the laws in that country, but we haven’t had any precedent where any country has tried to say ‘hey, you can’t do that outside of our country.’ We have had precedents but we have successfully fought them. This is one where a lot of the details of exactly how this gets implemented are going to depend on national courts across Europe, and what they define as the same content versus roughly equivalent content. This is something we and other services will be litigating and getting clarity on what this means. I know we talk about free expression as a value and I thought this was a fairly troubling development.”

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