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Facebook must delete and restrict illegal content, ECJ rules

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Europe’s highest court has ruled that Facebook can be made to remove and restrict access to content which is ruled to be illegal. These restrictions can be international in scope under certain circumstances.

The case was brought in 2016 by Eva Glawischnig-Piesczek, a former Austrian Green Party spokesperson. A Facebook user had described Glawischnig-Piesczek as a “corrupt oaf”, a “lousy traitor of the people” and a member of a “fascist” party. She attempted to have these allegedly defamatory comments and similar comments removed from Facebook.

The case was taken to the Supreme Court of Austria, which concluded that the comments were defamatory. The court referred the case to the European Court of Justice (ECJ) to determine whether Facebook should be continuously monitoring content to delete and restrict access to some content and what the scope of this moderation should be.

Facebook and free speech activists argued that restricting content beyond national borders could threaten freedom of expression (and could be exploited to censor embarrassing or critical content) and could also require the use of much-criticised content moderation algorithms. Glawischnig-Piersczek and her supporters countered that libel and defamation laws had not been properly enforced in the internet age and that Facebook and other platforms had not done enough to combat hate speech, personal attacks and other inappropriate content.

In recent years, Facebook has come under increasingly intense scrutiny over its laissez-faire approach to posting and sharing of hateful, disturbing and other inappropriate content, having long insisted that it is an impartial platform and not a publisher. Facebook has since taken some steps towards greater moderation of content, such as by introducing a tool allowing users to tag ‘fake news’ and by agreeing to ban content promoting white nationalism and white separatism following a terrorist attack in New Zealand motivated by these philosophies.

The court has ruled that Facebook – while not responsible for the comments being posted in the first place – can be ordered to “expeditiously” delete and prevent the sharing of identical or ‘equivalent’ defamatory posts by the offending user and other users.

“EU law does not preclude a host provider like Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal,” the ECJ stated. “In addition, EU law does not preclude such an injunction from producing effects worldwide, within the framework of the relevant international law.”

The decision may not be appealed.

The ruling places greater responsibility on large online platforms like Facebook, Twitter, and Google to monitor user-generated content and swiftly prevent illegal content from spreading. Philip James, a technology lawyer with Sheridans, London, told Bloomberg that the ruling has “potentially enormous repercussions for hosting and platform providers” and reflected an ongoing trend for courts to rule in the favour of rights holders and those affected by hate speech.

The precedent set by the ruling, however, could result in some conflict and confusion on account of the wildly varying libel or defamation, privacy and freedom of expression laws between countries. In many countries, the comments attacking Glawischnig-Piersczek would be considered legal political comment.

Last week, the ECJ ruled that the ‘right to be forgotten’ – which allows EU citizens to demand that links to ‘inadequate’, ‘irrelevant’, or ‘excessive’ content are delisted from search engine results – was limited to within the EU.

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