A recent judgment by the top court of the European Union allows individual European states to force social media companies to remove content globally, raising a concern that one country can force removal even in countries where said content is legal.
The decision may have broad implications for freedom of expression, especially in the United States, where the Constitution guarantees extensive free-speech protections.
In the United States, caps on free speech are limited to actions such as incitement to imminent lawless action and defamation—for which the legal standard is comparatively high, especially when the target is a public figure. Some European countries, however, not only have broader defamation laws, but also criminalize “hate speech”—a category open to wide interpretation, some experts say.
The Oct. 3 judgment by the Court of Justice of the European Union stems from a case involving former Austrian lawmaker Eva Glawischnig-Piesczek, who was, until 2017, spokeswoman for the left-leaning Austrian Green Party.
On April 3, 2016, a Facebook user posted a news article from Austrian news site oe24.at headlined, “Greens: Guaranteed Minimum Income for Refugees Should Stay.”
“Lousy traitor,” the person commented in the post, according to an Austrian court document (pdf). “This corrupt klutz has not earned a single penny of honest labor in her entire life, but has blown our tax money on these invaders. Finally ban this green fascist party.”
While comments of the sort are not uncommon in U.S. social media discourse, Glawischnig-Piesczek was able to get an Austrian court to order Facebook to remove the post for insult and defamation. Facebook responded by blocking access to the post from within Austria, but, on appeal, an Austrian court ruled against such a measure.
When the Austrian Supreme Court asked the EU court whether global removal is permissible under European law, the EU court concluded that it is, as long as the local law is “consistent with the rules applicable at international level.”
“It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules,” the judgment stated.
Glawischnig-Piesczek also wanted any “equivalent” content to get deleted, which the judgment also green-lighted, as long as “differences in the wording of that equivalent content” wouldn’t require the social media company “to carry out an independent assessment of that content.”
The judgment “dealt a major blow to free speech, paving the way for a single nation to act as a global censor and require that online platforms act as its minions in doing so,” wrote Jennifer Daskal, American University law professor, in an Oct. 3 Slate op-ed.
Facebook spokesperson criticized the judgement for going “much further” then its own content policies.
“It undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country. It also opens the door to obligations being imposed on internet companies to proactively monitor content and then interpret if it is ‘equivalent’ to content that has been found to be illegal,” the spokesperson said in an emailed statement.
“In order to get this right national courts will have to set out very clear definitions on what ‘identical’ and ‘equivalent’ means in practice. We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”
Social Media Censorship
Because a few companies, such as Google, Facebook, and Twitter, control most of the information flow in the United States and beyond, their engaging in censorship effectively bypasses constitutional free speech protections, according to Michael Rectenwald, author and former liberal studies professor at New York University.
“Big digital,” as he calls the handful of massive tech companies, are now engaged in “directing, constraining, and framing of online behaviors,” he said in a Sept. 28 talk at the Libertarian Scholars Conference at King’s College in New York.
“As such, big digital may be a means by which the oversight and control functions that were formerly the province of national governments have been delegated to the market.”
While the companies claim to be politically neutral in their content policing, Rectenwald argues otherwise.
“Political ideology is coded into the very DNA of big digital,” he said.
One way big digital’s politics manifest is through their “hate speech” policies, he argued.
Google and other tech companies have centered their “hate speech” rules on countering ideologies of supremacy, but more people have been slaughtered in the name of equality than supremacy, Rectenwald said.
“Youtube and other big digital principals represent leftism to themselves and to their digital constituencies as the default no-fault political belief system,” he said. “While the crimes of the political left, despite its much larger numbers, are swept under the carpet, ignored, or justified, YouTube regards leftist ideology not merely as obviously benign, but on the right side of history, even though their historical crimes are unparalleled.”
Rectenwald called the ideology practiced by big digital “corporate leftism.”
“It is deeply embedded in the ethos and technologies of big digital and has been for decades,” he said.
While it may look like an oxymoron, he said, supranational corporations indeed share many goals of the political left. The leftist goals of open borders, or effectively open borders, benefit the corporate appetite for free movement of labor. The “identity politics” endorsed on the left benefits corporations, since the splintering of identity groups allows for the cultivation of new niche markets, Rectenwald said.
“The disruption of stable gender categories will eventually dismantle the family, the last bastion of influence other than the state and major monopolistic powers,” he said.
Global corporations would also benefit from one international set of rules, thus siding with the left on promoting internationalism with the ultimate goal of a global government.
“The politics that most clearly aligns with the world-wide global interests of monopoly corporations is contemporary left-wing politics,” he said.
Rectenwald expounded on his views in his recent book, “Google Archipelago: The Digital Gulag and the Simulation of Freedom.”
Behind Closed Doors
Facebook Chief Executive Mark Zuckerberg acknowledged the company has a problem with political bias, according to Sen. Josh Hawley (R-Mo.), who spoke to Zuckerberg on Capitol Hill behind closed doors on Sept. 19.
Zuckerberg’s comments would be the closest any of the tech giants have come to acknowledging the issue. Facebook, however, didn’t respond to a request for comment on Hawley’s remarks.
Update: The article has been updated based on a response from Facebook spokesperson.