ECJ should rule against Austrian online censorship lawsuit

EU judges now have an opportunity to make it clear that no member state can decide what the rest of the world reads online, because Austria's Supreme Court has referred the matter to the European Court of Justice (ECJ).

Since countries have different laws on the limits to free speech, none should be allowed to censor social media beyond its borders.

The case concerns posts that called Glawischnig a "corrupt tramp" and a "Volksverräterin," a Nazi slur meaning a traitor to one's people.

In December 2016, an Austrian court ordered Facebook to remove the posts and all verbatim copies, and in May last year, an appeals court ruled Facebook must apply the injunction globally. Glawischnig appealed for a second time, claiming Facebook should also have to find and remove similar posts.

This month, the country's Supreme Court passed her case to the ECJ because EU law prohibits member states from imposing a general obligation on companies to filter information for illegal content.

The comments about Glawischnig are vulgar, but entirely legal under the laws of many other countries, which have different standards of free expression and different methods for dealing with defamation and hate speech.

Undermining sovereignty

Companies should respect local laws wherever they operate, but not to the extent of undermining other countries' sovereignty.

A reasonable solution in this case would be to block the offending posts in Austria and allow them everywhere else. Austrian judges should not dictate what users outside Austria can share on Facebook.

If the ECJ supports last May's ruling it would set a precedent that other countries could point to when they want to control what people can read online.

Pakistan, for example, has put pressure on Facebook to crack down on what the government calls "blasphemy," meaning challenges to religious orthodoxy, which carries the death penalty in that country.

It would not be much of a stretch for Pakistan to order Facebook to take down insufficiently pious content worldwide, including in Europe.

Closer to home, Turkey's president has aggressively pursued legal action against his critics in Germany and Spain.

Even in Hungary, an EU member state, the national government has used drastic constitutional and legal changes to control domestic media and suppress criticism. If the EU allows Austria to limit free speech beyond its borders, why not let others interfere with the rights of Europeans too?

Incompatible with global internet

Another reason why the lawsuit is troubling is that Glawischnig wants to force Facebook to remove anything similar to the original posts, which would push the company to delete too much.

Facebook's algorithms can help identify similar posts, but they are blunt tools because they either miss things or remove too much, so moderators have to review borderline cases. Whenever there is any doubt about whether a post is unacceptably similar to the originals, the prospect of further legal trouble will pressure Facebook to delete it rather than not.

The Glawischnig case is not the first time a European court has tried to censor what the rest of the world can read on the internet. French judges have ordered Google to prevent users all over the world from accessing old news articles about French citizens, under the EU's "right to be forgotten."

Such demands are incompatible with the global Internet, where countries generally can set their own rules, but do not have the right to meddle with what people elsewhere can read. The ECJ should make that clear when it decides the Glawischnig case.

Nick Wallace is a Brussels-based senior policy analyst at the Center for Data Innovation. His Brussels Bytes column deals with the digital single market and data-related policy issues in the European Union.