How much of an obligation should social media platforms be under to hunt down illegal content?<\/p>\n
An influential advisor to Europe\u2019s top court has taken the view<\/a> that social media platforms like Facebook can be required to seek out and identify posts that are equivalent<\/em> to content that an EU court has deemed illegal \u2014 such as hate speech or defamation \u2014 if the comments have been made by the same user.<\/p>\n Platforms can also be ordered to hunt for identical repostings of the illegal content.<\/p>\n But there should not be an obligation for platforms to identify equivalent defamatory comments that have been posted by any user, with the advocate general opining that such a broad requirement would not ensure a fair balance between the fundamental rights concerned \u2014 flagging risks to free expression and free access to information.<\/p>\n \u201cAn obligation to identify equivalent information originating from any user would not ensure a fair balance between the fundamental rights concerned. On the one hand, seeking and identifying such information would require costly solutions. On the other hand, the implementation of those solutions would lead to censorship, so that freedom of expression and information might well be systematically restricted.\u201d<\/p>\n We covered this referral to the CJEU <\/span>last year<\/a>.<\/span><\/p>\n It\u2019s an interesting case that blends questions of hate speech moderation and the limits of robust political speech, given that the original 2016 complaint of defamation was made by the former leader of the Austrian Green Party, Eva Glawischnig.<\/span><\/p>\n An Austrian court agreed with Glawischnig<\/span> that hate speech posts made about her on Facebook were defamatory and ordered the company to remove them. Facebook <\/a> did so, but only in Austria. Glawischnig challenged its partial takedown and in May 2017<\/a> a local appeals court ruled that it must remove both the original posts and any verbatim repostings and do so worldwide, not just in Austria.\u00a0<\/span><\/p>\n Further legal appeals led to the referral to the CJEU which is being asked to determine where the line should be drawn for similarly defamatory postings, and whether takedowns can be applied globally or only locally.<\/p>\n On the global takedowns point, the advocate general believes that existing EU law does not present an absolute blocker to social media platforms being ordered to remove information worldwide.<\/p>\n \u201cBoth the question of the extraterritorial effects of an injunction imposing a removal obligation and the question of the territorial scope of such an obligation should be analysed, in particular, by reference to public and private international law,\u201d runs the non-binding opinion.<\/p>\n Another element relates to the requirement under existing EU law that platforms should not be required to carry out general monitoring of information they store \u2014 and specifically whether that directive precludes platforms from being ordered to remove \u201cinformation equivalent to the information characterised as illegal\u201d when they have been made aware of it by the person concerned, third parties or another source.\u00a0<\/span><\/p>\n On that, the AG takes the view that the EU\u2019s e-Commerce Directive does not prevent platforms from being ordered to take down equivalent illegal content when it\u2019s been flagged to them by others \u2014 writing that, in that case, \u201cthe removal obligation does not entail general monitoring of information stored\u201d.<\/p>\n