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

from the WORLD-IS-YOURS... dept

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.

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Filed Under: austria, cjeu, eu, eva glawischnig-piesczek, global takedowns, internet, jurisdiction
Companies: facebook


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  • identicon
    Anonymous Coward, 18 Nov 2020 @ 11:04am

    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 just how will they feel when Iran decides to use the same principle?

    reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 18 Nov 2020 @ 11:07am

    Fiefdom Indeed

    I say the internet is going to fracture someday. Some countries insist that their laws at least have supremacy on their soil. And because many nations cannot agree upon what speech is permitted, and what is not, the only solution is to splinter.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 18 Nov 2020 @ 11:16am

      That won’t stop people from finding ways to reënable true global communication. Even China can’t stop all the leaks in the Great Firewall (try as though they might).

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2020 @ 12:30pm

      Re: Fiefdom Indeed

      and to what end?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2020 @ 4:21pm

      Re: Fiefdom Indeed

      Its unlikely that the internet is going to fracture someday let alone splinter.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Nov 2020 @ 9:44pm

      Re: Fiefdom Indeed

      You're correct that the internet will splinter - but it will be because of your moronic anti-section 230 crusade that will force the US to be sectioned off, not because of stuff like this.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 19 Nov 2020 @ 6:03am

      Re: Fiefdom Indeed

      "...the only solution is to splinter."

      You say that is if splintering the net will allow countries to maintain supremacy over their perceived share of it.

      Here's a hint; China can afford to maintain the Great Firewall only because China is content to employ tens of thousands of people for no other reason than a massive censorship regime.

      If the US wants to try doing even a fraction of that it first has to burn the Bill of Rights in public. After which it has to impose government authority on any and all corporations doing business in the US in a way which may get tricky given that those corporations are funding 99% of the political campaigns.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 18 Nov 2020 @ 11:10am

    Close call that

    Whew, it's a good thing that none of the countries on the planet have blasphemy laws, lèse-majesté laws or anything along those lines otherwise this incredible and well thought out ruling would instead be monumentally stupid and open the door to the more oppressive countries on the planet getting to set the bar for what's acceptable on the internet as a whole.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 12:25pm

    "I'll show them we are not fascist by trying to use librl law against randos who call my party a fascist and threatening the host into deleting it!". - Eva Glawischnig

    Really the best thing to do with fiedommakers at this point is a hard cutoff and flip them the bird. Extract every last red cent and transfer or fire all employees. They can go be fascists in their own backwater shithole of a country.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 19 Nov 2020 @ 6:22am

      Re:

      "They can go be fascists in their own backwater shithole of a country."

      Or head for the US where they'll be welcomed with open arms by the republican party.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Nov 2020 @ 6:48am

        Re: Re:

        Or head for the US where they'll be welcomed with open arms by the republican party.

        No thanks. We've got our own shit to deal with they can keep theirs.

        That is assuming they want to remain their own nation along with the rest of the world of course. Nothing good comes from having the biggest and most overfunded military in the world in a country where the world shoves all of it's dear leaders.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 23 Nov 2020 @ 4:58am

          Re: Re: Re:

          "No thanks. We've got our own shit to deal with they can keep theirs. "

          I'd argue the US "shit" in this question is the same crap the US imported on it's founding. Inherited cultural legacies from good old King George the founding fathers did not see fit to change, or realized there was no popular incentive to change.

          "Nothing good comes from having the biggest and most overfunded military in the world in a country where the world shoves all of it's dear leaders."

          I can show you 72 million americans who'd be screaming in joy if the US chose to import a Dear Leader who actually wasn't utterly inept. An austrian accent, to the Very Fine People, would be a bonus.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Rainier O'Puddle, 18 Nov 2020 @ 12:28pm

    >This isn't the way the internet is supposed to work.-SAYS WHO?

    Let's see. "Citation needed" for the single point isn't enough: I want to see the rules that you imply are written. Otherwise, you're just another arrogant ASS-erter on teh internets.

    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.

    Heh, heh. Again, you ASS-ert that you know.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Rainier O'Puddle, 18 Nov 2020 @ 12:29pm

      Re: >This isn't the way the internet is supposed to work.-SAY

      But you go FLATLY against Masnick's statement that fiefdoms (he calls them "platforms" here) DO have control of their subjects (that is, "users") get to see:

      "And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

      https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content -free-speech.shtml

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Rainier O'Puddle, 18 Nov 2020 @ 12:29pm

      Re: >This isn't the way the internet is supposed to work.-SAY

      If you would just put half dozen of Masnick's major assertions onto a bullet point list and keep it handy for reference you'd immediately catch contradictions such as above. -- I get tired of pointing them out!

      Anyhoo, if a corporation is doing business in a country, then it's everywhere subject to that country's laws. -- This is desirable from my view to keep corporations tangled up and limited. Won't affect me except positively if GOOGLE / FACEBOOK / TWITTER are subject to every law every where.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Nov 2020 @ 1:09pm

        Re: Re: >This isn't the way the internet is supposed to work.

        This is the worst muppet ever, i'm so glad jim henson isn't around to see it.

        reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 18 Nov 2020 @ 1:26pm

        For what reason should the laws of India or Saudi Arabia get to determine what I, an American, get to see on Twitter, a website incorporated in (and generally managed from) the United States?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Nov 2020 @ 6:54am

          Re:

          Of all people, you should know the answer. Corporate Free Speech.

          Corporate will glady decide what laws you, an American, are subject to on their platforms. If those laws just so happen to conside with the lowest common denominator for freedom of speech, well by golly, then that's the law that you, an American, will be held subject to. As it is the corporation's right to choose.

          reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 19 Nov 2020 @ 6:24am

        Re: Re: >This isn't the way the internet is supposed to work.

        So if Facebook is doing business in Iran then, according to you, Facebook in the US needs to abide by both Iranian and US law?

        Doesn't make much sense but hey, Baghdad Bob, that's the sort of logic we're used to from you by now.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Nov 2020 @ 12:34pm

      Re: >This isn't the way the internet is supposed to work.-SAYS W

      " I want to see the rules"

      Rules of the Internet

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 18 Nov 2020 @ 12:44pm

    Quick, somebody find the plug for the EU internet and unplug it before they fuck it up for the rest of us.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 1:34pm

    The EU is to the internet is as EA is to games: abusive.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 1:48pm

    I think the rest of the world may tell the EU and it's court 'fuck you', or at least they should!

    reply to this | link to this | view in chronology ]

  • icon
    Stan (profile), 18 Nov 2020 @ 2:25pm

    EU's reach

    It's a good thing that the EU wasn't around in the '30s when Germany was passing laws about Jews.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Nov 2020 @ 2:47pm

    It is long time due that EU starts claiming extraterritoriality of the European law as Americans have been doing all along. This will finally level the playing field across different industries. I hope that finance will come next and we will impose the equivalent of Fatca to all banks in the world.

    reply to this | link to this | view in chronology ]

    • icon
      Jeroen Hellingman (profile), 18 Nov 2020 @ 11:45pm

      Re:

      Europe is actually doing that already, but more stealthily, it is called CRS (Common Reporting Standards). The end result is that for illicit funds, the US is becoming one of the best places to hide it.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 18 Nov 2020 @ 8:32pm

    Has someone explained to them how stupid this is?

    Lets flip this...

    EU citizens are now subject to death for blasphemy, because why should the laws of The Kingdom not apply in their nations?

    This whole our nation can control the world thing has bitten them in the ass several times & they keep pushing it.

    Have we tested the water in the EU for lead lately?
    To keep trying to do the same things over and over suggests brain damage might be the cause.

    reply to this | link to this | view in chronology ]

  • icon
    Jeroen Hellingman (profile), 18 Nov 2020 @ 11:48pm

    This all boils down to enforcement. Put your content perceived as libel on a US-only site, and the EUCJ can declare anything it want, the US probably won't take action until a US court agrees.

    Once more shows, we need to move to a more decentralized world, in which we all have our own small server in our basement.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2020 @ 1:10am

    Their silly "laws" are not applicable here, much less enforceable.

    reply to this | link to this | view in chronology ]

  • identicon
    Paul Keating, 19 Nov 2020 @ 4:13am

    You do NOT understand jurisdiction

    First, I have never liked the way that the ECJ writes its opinions. They always are couched in a form of language that seems over-the-top formal and difficult to read.

    That being said, the author of the article clearly does not understand jurisdiction. The case involved jurisdiction over the "person" - in this case Facebook. Because Facebook was subject to the court's jurisdiction, the court is able to order Facebook to do what the court wanted Facebook to do - as long as that order was valid in the same jurisdiction. Thems the rules. Here, the court ordered Facebook to do stop publishing materials. It does not really matter where the materials were "available". As I read the ECJ opinion, the bit about social network distribution is really about the fact that publication in areas outside of Austria would likely continue to have an impact inside Austria.

    Best perhaps explained by example. Let's say you were a French citizen back in the day. You were know for killing English knights. You were arrested in England and brought before the King. Because you were arrested in England you were subject to "personal" jurisdiction of the King. The King could order you to stop killing English knights anywhere in the world. Is this enforceable? Yes. The question is where? If you went back to France and continued again took up your habit of killing English knights, it is likely that no French court would care. BUT, if you EVER returned to England, the King would have your head.

    In this case, if Facebook failed to honor the court's order, it would be subject to sanction in Austria because it continues to be in Austria.

    reply to this | link to this | view in chronology ]

  • icon
    Jeff Green (profile), 19 Nov 2020 @ 5:37am

    What this decision is really about

    Is a decision by the EU court that multinational companies cannot be allowed to exist. Facebook choose to do business in the EU and in other countries, the European Courts have decided that "Facebook" is an individual and has decided to be in the EU so is subject to their laws. A US court can make the same decision and a British Court and a Chinese Court. All these judgements could be contradictory yet Facebook must obey them all. The only alternative they have is to do no business and have no assets in the EU or any other coun try that expects its judgements to be enforced Worldwide. A case the other way around with the US government demanding data from Microsoft that it would be illegal for Microsoft to give in the EU (where the data resided) was decided in the US courts as applying US law to that circumstance.
    If we want the World to continue as it does now we need some new international treaties to limit this stupidity. Until then we must get used to the idea that multinationals are doomed.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 22 Nov 2020 @ 1:14am

    geo-blocking is one (now ineffective) option

    ``If Austria says these comments are defamatory (and it definitely shouldn't say that), then geo-blocking should be all that's required.''

    What is actually required is for the internet service, be it Facebook or Twitter or Paler, to close its offices and cease to pay taxes in Austria. The same for offices in any other country which follows suit. Turkey comes to mind right away as having thin-skinned leadership, but hardly stands alone.

    A U.S. company with no assets (and no longer paying taxes in) Austria is largely beyond reach. The offended Austrian politician will not be able to domesticate her judgment here in the States, and without that ``a judgment is just a piece of paper''.

    reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 23 Nov 2020 @ 5:10am

    "The offended Austrian politician will not be able to domesticate her judgment here in the States..."

    Or anywhere, really. Geoblocking isn't really feasible from the client side. Austria would have to first enact legislation forcing every ISP to redirect all URL queries pertaining to the offensive website to s "You shall not pass" splash page. And that one's iffy given that the legal principle involved is the digital equivalent of telling every citizen they aren't allowed to leave the country if their end destination is city X, country Y.

    The principle allowing that action is the principle which would make the great firewall of China a legal option as well. Austria might have reservations, as a country, to adopt legislation identical to the old DDR or modern China.

    Even then the austrian using the Opera, Tenta, Aloha or UR browser? The Tor network? A standalone full VPN? Will never see or experience any effect of the government's injunction.

    It's remarkable, really, how eager government forces all over are to roll back legal ethics to the dark ages just because the internet now allows free speech in practice and at scale.

    reply to this | link to this | view in chronology ]


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