A bunch of foreigners are deciding what we Americans can read online.
Outrageous. Who do those Austrians think they are, anyway?
No, I didn’t get the country wrong. I’m talking about Austria, a liberal democracy and member of the European Union. Earlier this month, one of its politicians won a court case that ought to alarm all free-speaking Americans.
You might have thought I was going after China, which is using its economic might to punish the National Basketball Association, just because the general manager of the Houston Rockets tweeted support of anti-government protesters in Hong Kong. Remember that Twitter is banned in China, so hardly anyone there ever saw the message. This wasn’t about stifling domestic protests, but silencing criticism everywhere else in the world.
While the NBA belatedly stood behind the free-speech rights of its personnel, some of its fans who attended an exhibition game of a Chinese team in Philadelphia this week said they were ejected for showing solidarity with the Hong Kong protesters. Meanwhile, even mighty Apple has been cowed; it pulled an app from its online store at China’s behest that pro-democracy protesters in Hong Kong used to track the movements of police. And Google has stopped distributing a game for Android phones that let users pretend to be a protester in Hong Kong.
The news from Europe isn’t nearly as bad as the bullying from Beijing. But precisely because it’s a matter of law rather than a dictator’s whim, the Case of the Irritated Austrian may pose a worrisome threat to online freedom for years to come.
The ruling arose out of an incident in 2016, when someone on Facebook wrote that Eva Glawischnig-Piesczek, head of the Austrian Green Party, was a “lousy traitor” and a “corrupt bumpkin” who belonged to a “fascist party.” That kind of babble happens in the United States every day and barely merits a shrug, or maybe just a holla-back — “I’m no traitor! You’re a traitor!” But in Austria, such words may be sanctioned as illegal defamation.
Glawischnig-Piesczek sued in an Austrian court and won an order that Facebook must take down the offending words. But the court wasn’t content with riding herd on the reading habits of people in Austria. It held that Facebook had to take the message down around the world, so that absolutely nobody could read it.
I’d thought the United States had dodged this particular bullet. In 2014, the European Union’s highest court declared that citizens of the EU had the right to demand that search services like Google must take down embarrassing information about them if it was no longer relevant — being fired from a job 20 years earlier, for instance. Google grudgingly complied. Since then, it’s received nearly 846,000 takedown requests from Europeans and removed 1.3 million web pages. But since the law applied to the EU, Google didn’t delist the pages elsewhere in the world.
In 2016, France fined Google for refusing to delete the disputed information beyond the EU. After all, someone in France could still access that information, simply by going to the American version at Google.com instead of the French edition at Google.fr. But in September, the EU’s supreme court disagreed, ruling that Europe’s “right to be forgotten” can be enforced only against Google’s European sites.
Case closed? Not so fast.
On Oct. 3, the same court, ruling in the Glawischnig-Piesczek case, said that if the message in question is defamatory, the ban can be enforced worldwide. Facebook has to delete the disputed insults against her from its entire network, or it could face sanctions in the European Union, where the company generated about $14 billion in revenue last year. Worse yet, the court ruled that Facebook must also take down “equivalent content” — in other words, posts that say essentially the same thing.
Now, how to enforce such a ruling? Automate the process, the EU court says. Surely Facebook’s computers can ferret out every instance of the insults in question. That might work for exact copies of the original post. But Facebook must also ban messages that say roughly the same thing. But what if the words are used in a message that supports Glawischnig-Piesczek, or a news story that merely describes the affair?
Facebook must sort it all out on a global scale, every time an EU court demands a new takedown. That will never work. Either insults will seep through, or the filters will be so strict that even modest criticisms are barred, and free speech is smothered.
It’s unlikely this ruling will lead to a torrent of censorship requests, as unhappy Europeans will have to first win a defamation case. And while the EU nations may impose more limits on free speech than the US, they at least recognize the principle.
But social networks might face similar demands from less liberal countries. China doesn’t have to since it already bans Facebook, Google, and Twitter. But these companies are in other countries with other nasty regimes. Imagine Russia calling for worldwide takedowns of Facebook messages that defame Vladimir Putin, if such a thing is possible. Now he can use the EU court ruling to give any such demands a veneer of legality.
A few years back, I wrote about the need for an international treaty to set standards on Internet content regulation. We Americans already have the perfect template — the First Amendment — but most of the world isn’t nearly as open-minded. So we’ll have to compromise. And here’s where to start: Let’s tell the Europeans that we’ll recognize their “right to be forgotten” law and its nitpicky definition of defamation, but only until we hit the Atlantic Coast. On this side of the water, let’s play by our rules.
But the US can’t hash out such a deal with China because Beijing won’t bend on the issue of censorship. So there’s only one question: Will we?
In effect, America’s corporations, desperate for Chinese cash, are negotiating with themselves. And so far, free speech is losing.