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Today the CJEU’s Advocate General said Austria can require Facebook to (1) actively monitor/filter and (2) globally remove user posts because they call a politician an “oaf” and her party “fascist.” That’s defamation in Austria, but wouldn’t be in US or some other EU countries.
Here's the opinion. To be clear, the AG isn't the court. But he's a highly respected internal advisor, and the court very often follows his advice. curia.europa.eu/juris/document…
He says, four concrete things:
1. The court can make Facebook monitor a specific user to block both specific prohibited words and “equivalent” ones.
2. The court can make Facebook monitor EVERY user’s account to block the specific words, but not the equivalent ones.
1. The court can make Facebook monitor a specific user to block both specific prohibited words and “equivalent” ones.
2. The court can make Facebook monitor EVERY user’s account to block the specific words, but not the equivalent ones.
3. Nothing in the eCommerce Directive or other EU laws prevents Austria from ordering Facebook to take content down globally. (He also says can order global enforcement sometimes, but note that question was not actually presented.)
4. Once a court says the words are unlawful, it can order FB to remove based on notification of equivalent words (that part seems uncontroversial)
This is a smart AG (Szpunar). But his opinion reflects everything wrong about the *process* by which technically complex questions, and questions affecting the rights of people who are not present to defend their interests, get raised to the CJEU.
The process problems are: (1) National courts don’t have to develop a strong factual record before referring the case to the CJEU, and (2) Once cases get to the CJEU, experts and public interest advocates can’t intervene to explain the missing info.
That’s doubly problematic when – as in every intermediary liability case – the court hears only from (1) the person harmed by online expression and (2) the platform but NOT (3) the users whose rights to seek and impart information are at stake. That's an imbalanced set of inputs.
On the massively important question of how filters work, the AG is left to triangulate between what plaintiff says, what Facebook says, and what some government briefs say. He uses those sources to make assumptions about everything from technical feasibility to costs.
In the absence of other factual sources, he also just gives up and quotes from a fictional movie – The Social Network -- about the permanence of online info. (Incidentally, @jorisvanhoboken has written well about why that’s not really true.)
This is a long thread, so I am going to break off a riff on the monitoring issue and another on the jurisdiction issue. I'll be back in a bit to do that.
[This didn't thread right somehow, adding some things here again.]
That’s doubly problematic when – as in every intermediary liability case – the court hears only from (1) the person harmed by online expression and (2) the platform but NOT (3) the users whose rights to seek and impart information are at stake. That's an imbalanced set of inputs.
On the massively important question of how filters work, the AG is left to triangulate between what plaintiff says, what Facebook says, and what some government briefs say. He uses those sources to make assumptions about everything from technical feasibility to costs.
In the absence of other factual sources, he also just gives up and quotes from a fictional movie – The Social Network -- about the permanence of online info. (Incidentally, @jorisvanhoboken has written well about why that’s not really true.)
This is a long thread, so I am going to break off a riff on the monitoring issue and another on the jurisdiction issue. Here is the monitoring/filtering part:
And here's the jurisdiction part.
Thanks for nerding out on platform filtering and global takedowns with me, y'all.
Thanks for nerding out on platform filtering and global takedowns with me, y'all.
