Facebook will be subject to tougher controls over online content after the EU’s highest court ruled the social media company can be ordered by member states to remove defamatory material worldwide.
The judgment from the European court of justice in Luxembourg was condemned by free speech organisations for imposing restrictions on online comments. It effectively edges internet service providers further down the road towards becoming traditional publishers.
The decision followed a complaint by the Austrian Green politician Eva Glawischnig-Piesczek to Facebook Ireland – the company’s European headquarters – seeking the removal of comments posted by a user.
The ECJ, judgments of which remain binding on the UK, said social media sites can be ordered to take down unlawful material.
Host providers such as Facebook are currently not liable for stored information if they have no knowledge of its illegal nature or if they act “expeditiously” to remove or disable access to that information as soon as they become aware of it.
The latest ruling, however, states exemption does not prevent online platforms from being ordered by national authorities to remove illegal information or disable access to it.
A statement on behalf of the ECJ also declared EU member states can order internet companies to block access to “information [deemed unlawful] worldwide within the framework of the relevant international law, and it is up to member states to take that law into account”.
Free speech organisations warned the decision represented a threat to online content. The executive director of the charity Article 19, Thomas Hughes, said: “This judgment has major implications for online freedom of expression around the world.
“Compelling social media platforms like Facebook to automatically remove posts regardless of their context will infringe our right to free speech and restrict the information we see online. The judgment does not take into account the limitations of technology when it comes to automated filters.
“The ruling also means that a court in one EU member state will be able to order the removal of social media posts in other countries, even if they are not considered unlawful there. This would set a dangerous precedent where the courts of one country can control what internet users in another country can see. This could be open to abuse, particularly by regimes with weak human rights records.”
The judgment enables a court in one EU member state to issue an order that could be used to remove posts by users around the world, even though what is considered unlawful in one country might not be considered unlawful in a different jurisdiction.
The decision also raises questions about how material found to be unlawful in one country will be identified by Facebook or other social media sites without searching through the posts of all its users.
Ted Shapiro, a solicitor at London media law firm Wiggin, said: “The court recognised that simply requiring a platform to take down a specific piece of defamatory content and content identical to that would be too easy to circumvent … It held that platforms can also be ordered to take down equivalent content, if specified in a court order.
“This, the court said, does not constitute an excessive burden on the platform, particularly where it has recourse to automated search tools and technologies.... This provides more clarity for platforms as to what they must do to comply with their obligations under the law.”
