A little more than a year ago, I wrote with concern about the risk that a single EU court within single EU member state would become the censor for the world. That fear has now become reality. In a ruling in September, first reported on Thursday, the Austrian Supreme Court ordered, pursuant to local defamation rules, that Facebook remove a post insulting a former Green Party leader, keep equivalent posts off its site, and do so on a global scale.*
The case started with an April 2016 Facebook post, in which a user shared an article featuring a photo of Eva Glawischnig-Piesczek, then-chair of Austria’s Green Party, along with commentary labeling her a “lousy traitor,” “corrupt oaf,” and member of a “fascist party,” apparently in response to her immigration policies. This is core, protected speech in the United States. But it was deemed defamation under Austrian law. And in a series of rulings, Austrian courts ordered that Facebook take down and keep off any such post, and do so around the world.
Facebook complied, but only in part. Employing what is known as geoblocking, it made the particular post that had been identified inaccessible to users within Austria. But it objected both to the global reach of the order and to the obligation to look for and keep other, equivalent posts off their site. And it argued that the order violated the applicable EU’s e-Commerce Directive, which prohibits EU member states from imposing general monitoring obligations on tech companies like Facebook.
In an October 2019 ruling, the European Court of Justice sided with Austria—concluding that the e-Commerce Directive did not stand in the Austrian court’s way (a ruling that is hard to reconcile with the text of the directive, for reasons I won’t rehash now). The CJEU ruling set two limits, albeit minimal, on EU member state courts. First, the obligation to look for and take down equivalent content must be issued with sufficient specificity to eliminate the need for independent provider assessment of that content—a criteria that, as I and others have argued previously is premised on a largely misguided assessment of the ability and precision of filtering tools. Second, any worldwide injunction must comport with “relevant international law.”
The consequences of the Austrian court ruling are far-reaching. Under current practice, global tech companies like Facebook and Google and Twitter set generally applicable community standards and terms of service—setting the rules for what is permitted on their platforms. These rules apply globally, across the platform, regardless of location of the user. But global tech companies are also bound by local laws that, at times, impose additional content-based restrictions on what users within their jurisdiction are allowed to say. Think Germany’s hate-speech laws. Or particular variants of the right to be forgotten. Or the Thai government’s prohibition on critique of the monarch. Or Singapore’s limitations on what is deemed “fake news,” defined as anything a minister deems both false and prejudicial to the Singaporean state.
Under the Austrian court precedent, courts in any such jurisdiction would be more or less free to apply their local laws to compel not just local, but global takedowns of posts or comments that violate the vagaries (and often highly speech-restrictive) of local law. And they could also require that copycat and equivalent posts be kept off—also on a global scale. This creates a classic risk of a race to the bottom, with the most censor-prone nation setting global speech rules.
To be sure, such orders must, under the CJEU ruling and general legal precepts, comply with “relevant international law.” They cannot, as a result, violate international human rights rules on free speech. But the specific contours of international human rights are themselves highly contested. And beyond the requirement to comply with human rights law, international law provides minimal guidance to deal with the divergent approaches to free speech across borders. (See also Dan Svantesson’s thoughtful discussion here.)* In fact, absent some kind of must-carry obligation, in which one government’s demand that certain content be taken down conflicts with another government’s requirement that content be left up, there is almost never the kind of classic conflict of laws that yields demurral by the enforcing state.
The Austrian court ruling, while final, was issued in connection with provisional proceedings. There is still hope that the injunction will be lifted as part of the main proceedings. But whatever happens, the case highlights the urgent need for self-restraint and agreed-upon limits to orders with global reach. This is not to say that global takedowns are never permissible, but there should be a high bar. They should, for example, be ordered only in those cases in which the harm being addressed is particularly high, there is a broad global consensus about the nature and seriousness of the harm, and the order does not, as a result, run counter to free speech and other fundamental rights protections of others. There is, after all, a self-interested reason for such caution. If Austria can set the speech rules for the world, others can set the rules for Austria.
Correction, Nov. 16, 2020: This post originally misstated when the Austrian Supreme Court issued its ruling. It was in September, but only reported on Nov. 12.
Correction, Nov. 13, 2020: This post originally misspelled Dan Svantesson’s last name.