The decision concerns an Austrian politician who sued Facebook for allegedly defamatory comments accompanying a news story on its platform. The country’s courts eventually decided she was right, and not only did they order Facebook to proactively block similar posts in the future but they also asked the E.U. Court of Justice to consider whether Facebook should have to do so globally. Last Thursday, the judges answered yes: A country can tell a company to use filters, and it can tell a company to use them everywhere.
These two declarations are dangerous on their own. Together, they are near-disastrous.
First, the filtering. E.U. state courts are allowed to tell companies to monitor for “identical” or “equivalent” uploads and then prevent them from appearing at all. But how do you program an algorithm to stamp out the phrase “corrupt oaf” when it applies to an individual politician and not when it appears in countless acceptable other contexts? The court also wants companies to act against posts with the same “message” as an offending one. But that invites inevitable overreach once again — especially given how difficult it has proved for machine learning to navigate the nuances of human communication.
Now take that overreach and apply it around the world. We have long argued against the export of censorship in other countries to this one, or any other. Admittedly, the Internet changes things: A British citizen in search of a banned book once would have had to travel thousands of miles to the United States to pluck it off a shelf. Now, an Austrian who wants to read angry commentary about a representative can easily download a tool to mask his location and access it as if he were in, say, Luxembourg.
But the remarkable reach of platforms such as Facebook also means that billions of people may now be stopped from speaking with a bang of a faraway judge’s gavel — even when what they are saying is lawful where they live. Other countries will gleefully get the message: Russia, Turkey and those similarly fond of pushing the legal envelope on shutting down online expression may use the E.U. ruling as an excuse to impose their own prohibitions on the global population.
E.U. legislators plan to reconsider laws relevant to both parts of the court’s decision, and though they are unlikely to rule out blocking technologies altogether, they could at least limit them to cases in which they are proved necessary, accurate and not an undue impediment on privacy or speech. They should also recognize that the whole world should not be forced to play by their rules, just as they would likely prefer not to play by those of some opportunistic despot.