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Europe’s top court forces Facebook to take down material worldwide: A deeply irresponsible, extraterritorial legal grab | American Enterprise Institute

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On October 3, the European Court of Justice (ECJ) ruled that an individual European country could force Facebook and other social media platforms to remove material not only from European websites, but also from websites around the world. The decision signals an increasingly common judicial overreach by the court, and sets out an irresponsibly vague set of definitions and standards by which social media outlets will be judged.


Further, in this ruling the ECJ turned its back on its own stand just weeks ago. At that time, it held that the alleged privacy embodied in the so-called “right to be forgotten” was not “an absolute right,” but must be balanced against other civil liberties such as free speech. 

To review, the case originated in Austria, when an Austrian Green Party official brought a case to force Facebook to take down epithets against her on its website (She was called a “corrupt oaf” and a “lousy traitor.”) The Austrian court ruled in her favor and also extended the takedown worldwide. The case was then sent to the ECJ. In its recent decision, the ECJ also held that Facebook, at the demand of any EU member state, must remove the offending phrases worldwide, and it also mandated that the company seek out and remove any “equivalent” words and phrases.

The ECJ decision has unleashed a Pandora’s box of negative consequences and potentially endless litigation. In this case, there is the particular issue that in most countries — and certainly in the US — political epithets are generally protected speech. But beyond the political circumstances, filtering for defamatory words or their “equivalent” will be a hopeless task — not least because the court does not give real guidance as to how one defines equivalence. There are also deeper civil liberties questions. No doubt Chinese and Russian leaders will be happy set the terms of prohibited criticisms of individuals, including government officials. Free speech organizations have strong reasons to decry the extraterritorial consequences of Europe’s demands on social media platforms.

Finally, it should be underscored that fundamentally, this is not an issue of Facebook vs. the EU (Just as the right to be forgotten is not an issue between Google and the EU) — it directly implicates public policy and thus must finally be settled by governments. As noted previously in this blog, the fact that the US has no legislation, or even an executive order balancing privacy rights with free speech, has crippled efforts to challenge Europe’s drive to force the rest of the world to its diktat on rules governing the internet.

Whatever the larger failure, however, in this instance the Trump administration should at least issue a warning that it expects US companies to be guided by US constitutional guarantees of free speech, or better still publicly challenge the EU’s digital imperialism. At least, then, Facebook (and Google) would know that the US government has finally awakened to this threat to US constitutional safeguards and national economic interests.

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