November 27, 2020

EU Court Backs Austrian Court, Says Local Libel Law Applies Everywhere In The World

By Tim Cushing
Whole lot of people complaining about Section 230 at the moment. And it’s a whole lot of people who should know better. Do you want to become Europe? Because this is how you become Europe.

In 2019, the Court of Justice of the European Union picked up a libel lawsuit handed to it by an Austrian court. The case dealt with a politician’s thin skin and supposedly defamatory content… you know, the sort of kneejerk reaction we’ve come to expect from authoritarians and bullies running countries with horrendous track records on human rights. But this is Austria, which is generally considered to be part of the “free world,” rather than a despotic dictatorship whose top politicians are to be viewed as gods among men — at gunpoint, if necessary.

Even in the “free world,” politicians far too often seem unable to handle criticism responsibly. There’s really not much in this case that lends itself to any honest definition of the term “libel.” Political rhetoric is superheated stuff, so a lawsuit over being called a “lousy traitor” on Facebook — as Green Party politician Eva Glawischnig was — should be considered an unactionable overreaction to normal online discourse. She was also called a “corrupt tramp” and a member of a “fascist party,” which is a little more specific but well within the realm of opinion, rather than false statements portrayed as facts. Presumably even the person who posted the comments doesn’t truly believe the politician is a sex worker who engages in the illegal acquisition of goods and services and/or is an actual facist.

None of this matters in Austria. And none of this matters in the rest of the world either, according to the Court of Justice for the European Union (CJEU). Last summer, the CJEU discussed the Austrian lawsuit and opined that maybe Europe should control what content anyone gets to see anywhere else in the world. A few months later, it solidified its shaky thinking, opining that the worldwide reach of the internet justified extraterritorial censorship.

Given that a social network facilitates the swift flow of information stored by the host provider between its different users, there is a genuine risk that information which was held to be illegal is subsequently reproduced and shared by another user of that network.

In those circumstances, in order to ensure that the host provider at issue prevents any further impairment of the interests involved, it is legitimate for the court having jurisdiction to be able to require that host provider to block access to the information stored, the content of which is identical to the content previously declared to be illegal, or to remove that information, irrespective of who requested the storage of that information. In particular, in view of the identical content of the information concerned, the injunction granted for that purpose cannot be regarded as imposing on the host provider an obligation to monitor generally the information which it stores, or a general obligation actively to seek facts or circumstances indicating illegal activity, as provided for in Article 15(1) of Directive 2000/31.

Facebook complied with this ruling by geo-blocking the content in the offended country. But this wasn’t enough for the CJEU, which backed the Austrian court’s decision. The case has returned to Austria and what the court there has ruled apparently applies to everyone — including US social media platforms.

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.

This isn’t the way the internet is supposed to work. It’s not supposed to be subject to a bunch of fiefdoms wielding bad laws and bad legal precedent to decide what internet users around the world get to see. If Austria says these comments are defamatory (and it definitely shouldn’t say that), then geo-blocking should be all that’s required. But that’s not how the CJEU sees it. And its backing of a bad Austrian court decision opens the door for more bad faith litigation from “leaders” who can’t handle criticism without getting a lawyer involved.