EU Continues To Muck Up The Internet: Approves Broad Filtering/Censorship Requirements
from the so-this-is-really-bad dept
Yes, it's time for this week's edition of "how is the EU fucking up the internet." Over the summer we wrote about an important case in front of the Court of Justice of the European Union (CJEU), warning that the Advocate General's recommendations would lead to mass filtering and censorship of the internet, seemingly going against existing law and precedent that supports freedom of expression and which says that automated filtering violates human rights. Welp. So much for that.
Glawischnig-Piesczek v. Facebook is really, really bad. If you don't recall, the case dealt with an Austrian politician, Eva Glawischnig-Piesczek, who got really upset for comments on Facebook that called her a "lousy traitor of the people," a "corrupt oaf," and a member of a "fascist party." While one may regret this level of political discourse, it is pretty typical. I mean, that last one is basically a part of Godwin's Law, which shows just how common it is for such an accusation to be thrown around. However, Glawischnig-Piesczek sued Facebook. In the US, thanks to Section 230, Facebook clearly wouldn't be liable for such statements. In Europe, with the much less strict E-commerce Directive, an Austrian court not only found that Facebook must remove such content, but that the block should be global and that "equivalent content" must also be blocked.
As we noted back in June, the Advocate General's thoughts on the case were muddled with technical illiteracy (and even some basic legal confusion). It even suggested that monitoring your own content should wipe out your liability safe harbors (which is totally backwards). And then made a weird comment about how moderation efforts need to be "neutral."
Tragically, rather than fix things, the CJEU decided to just come up with the worst possible outcome. It says that's it's perfectly fine and dandy for EU law and a national court to order any website provider to install filters:
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.
That's basically the entire discussion -- which is troubling -- because it doesn't recognize (at all) how bad such filters might be. First of all, for smaller sites, such filters may be prohibitively expensive. Second, such filters are notoriously bad. They provide both false positives and false negatives, and the court doesn't even seem to contemplate how this might lead to overcensorship and/or what to do if the filters actually fail to catch a reposting of the content.
But it gets worse from there. Even if you argue that identical content to that already adjudicated as violating the law shouldn't be hard to filter, how do you deal with "equivalent" content? The CJEU basically says "meh, I'm sure it can be done."
It is apparent from the information set out in the order for reference that, in using the words ‘information with an equivalent meaning’, the referring court intends to refer to information conveying a message the content of which remains essentially unchanged and therefore diverges very little from the content which gave rise to the finding of illegality.
In that regard, it should be made clear that the illegality of the content of information does not in itself stem from the use of certain terms combined in a certain way, but from the fact that the message conveyed by that content is held to be illegal, when, as in the present case, it concerns defamatory statements made against a specific person.
It follows therefore that, in order for an injunction which is intended to bring an end to an illegal act and to prevent it being repeated, in addition to any further impairment of the interests involved, to be capable of achieving those objectives effectively, that injunction must be able to extend to information, the content of which, whilst essentially conveying the same message, is worded slightly differently, because of the words used or their combination, compared with the information whose content was declared to be illegal. Otherwise, as the referring court made clear, the effects of such an injunction could easily be circumvented by the storing of messages which are scarcely different from those which were previously declared to be illegal, which could result in the person concerned having to initiate multiple proceedings in order to bring an end to the conduct of which he is a victim.
Conceptually, you can see how the court would think this. Obviously, it's no good if the court has declared that a certain statement is illegal, and someone tries to get around that with a tiny tweak of a letter or something. But, how the hell are companies supposed to filter for that? Here, the CJEU tries to split the baby by saying that any injunction should spell out what counts as equivalent content:
In light of the foregoing, it is important that the equivalent information referred to in paragraph 41 above contains specific elements which are properly identified in the injunction, such as the name of the person concerned by the infringement determined previously, the circumstances in which that infringement was determined and equivalent content to that which was declared to be illegal. Differences in the wording of that equivalent content, compared with the content which was declared to be illegal, must not, in any event, be such as to require the host provider concerned to carry out an independent assessment of that content.
In those circumstances, an obligation such as the one described in paragraphs 41 and 45 above, on the one hand — in so far as it also extends to information with equivalent content — appears to be sufficiently effective for ensuring that the person targeted by the defamatory statements is protected. On the other hand, that protection is not provided by means of an excessive obligation being imposed on the host provider, in so far as the monitoring of and search for information which it requires are limited to information containing the elements specified in the injunction, and its defamatory content of an equivalent nature does not require the host provider to carry out an independent assessment, since the latter has recourse to automated search tools and technologies.
In other words, it won't be up to the platform to determine what's equivalent (mostly), and it won't have to "generally monitor"... except that it does need to monitor generally for whatever words and phrases might be in the injunction.
Again, all of this is done without even the slightest thought to how that is likely to be abused or (more likely) have tons of false positives and false negatives that could create massive censorship.
Oh, and finally, the court says that such blocking orders can be global:
In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive.
Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide.
The only limitation on that is based on what each member state in the EU decides for its own laws implementing the E-Commerce Directive.
As Stanford Law's Daphne Keller explains in this excellent thread, a huge part of the problem here is that the users of Facebook are not represented in court -- so the court only was determining if mandated filters would harm Facebook's rights, and the answer is no. But that ignores that these decisions will impact the rights of basically all of Facebook's users.
Under this ruling, it seems likely that Facebook users in Austria won't even be able to see this article because it mentions the "banned words" that were used to describe the politician -- and those have been declared illegal. That's a key issue here: declaring "words" illegal without context is a huge problem. But if you're talking about filtering, then you're removing even the possibility of exploring the context of the use of the words. That's a problem.
Separately, if you're thinking that it sounds like this ruling conflicts with the big CJEU ruling from last month denying a French attempt to have the Right to be Forgotten apply globally, that's not quite true. The French/Google ruling was more limited in scope, and basically left as an open question whether member states could craft a right to be forgotten law that might apply globally. In this case, it found that Austria's defamation law could.
Either way, this is going to create quite a mess. Once again, it will make it nearly impossible for small internet platforms to feel comfortable in Europe. At any point, a court might order them to filter out certain content, and to also filter "equivalent" content and do so globally. That's absolutely true in Austria, and could also be true based on the specific laws in other countries. That's a recipe for censorship and widespread abuse. It will also make it difficult for smaller internet platforms in the EU to ever become larger internet platforms.
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Filed Under: austria, blocking, cjeu, defamation, equivalent content, eu, eva glawischnig-piesczek, filtering, jurisdiction, monitoring
Companies: facebook
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I wonder if Facebook could — or would — cut off the entire EU and see how they like not having access to the service for, say, a week. I’d like to think that act would make a hell of a point.
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This is the Fun of the internet..
The biggest democratic discussion of them all.
Freedom of speech
Freedom to be an idiot
No editing, no cuts, nothing to interfere with Stupid.
Get 1000 people into a court yard, talking, and let the Judge monitor it...That is the internet.
then some Rich person/group/company gets its feelings hurt, and runs off to yell at mommy.
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They don't have to block the EU, just remove their corporate presence. If they don't have an office or other physical presence there then their laws can't supersede those of their home country. It might mean that service slows down for EU residents as the servers will no longer be located close to them but wtf, driving Facebook and others out seems to be exactly what the EU wants (as long as they get to keep the taxes paid by those companies).
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I'm just waiting for the first of several companies to pull all offices out of the EU completely and simply give them the middle finger when this comes up in the future. There is little reason to have offices in these areas in terms of the product, there are plenty for business reasons but eventually this sort of crap is going to outweigh those benefits. At that point, what is the EU going to do? Sue the company? Fine them? So what, they don't have any presence in your little walled garden.
The only real retaliatory methods they would have at that point would be to try and block them, with VPN's that always works so well. Attempt to block all payment methods, that would be a massive whack a mole game. Etc. At which point the citizens are more than likely to finally tell these people where they can shove it and that they need to get out of the way or they'll be kicked to the curb.
Yeah, I know, enough holes in this to drive a tractor through but one can dream...
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Oh, I'd LOVE to see that happen. Seeing as how I've never had a Facebook account and the the sheer entertainment value of watching everyone else rend their clothes while ululating would be through the roof.
More seriously and to the point though, this and worse needs to come to pass - we are a strongly reactive species, which means that no amount of foresight and/or lip service results in anything getting done until something so epically bad happens that everyone suddenly realizes something needs to be done (and someone actually does it).
You want safer flying? You'll have to pay for it with the blood of dead passengers, because nothing will happen until a plane falls out of the sky (or two, or three, for the same reason...), no matter who noticed what before. Same with actual freedom of speech - until the proverbial boot gets a good, lasting print on everyone's faces we apparently just can't be bothered to realize how current mega-sites are utterly inadequate for the purpose, and why we should give a damn. They are the de facto gatekeepers of having your voice heard - even if current legal frameworks don't recognize them as such, not requiring them to guarantee absolutely everyone, yes, everyone an equal, fair chance at uncensored speech.
Something else will need to come along eventually, something able to stay out of any single entity's (or any group's) control, something that is guaranteed to be able to always connect a speaker and a crowd wishing to hear what they have to say, regardless of how powerful of a who is getting upset by it. And we need that boot first to make everyone realize why we need this kind of tech. At any rate, none of that will go down on my shift... but given human nature, make no mistake, go down it will.
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Oh goody
Even more sits that will not allow me to see any of their content "to comply with EU legislation".
That VPN is going to get some hammering.
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I would just terminate both the plaintiff and defendants accounts and then filter for their names in all posts.
That seems like the only reasonable way to comply with the "get all defamation globally" order to be implemented.
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I mean defamer and litigious fascist politician. That's not defamation because the policies that politician advances seem to be anti-free speech and anti-liberty so that person seems to be a real-in-fact-fascist along with the foreign courts who are trying to stop me from reading something on another continent.
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Honestly, if I would Facebook I would also spin off Facebook-Austria as a subsidiary so their global blocking orders would only affect Facebook in Austria either way.
Then Facebook and Austria can have horrible privacy invading, global censoring policies together and given Facebook's general disposition toward user privacy they may get along well with that form of government anyway.
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"In order to answer that question, it must be observed that, as is apparent, notably from Article 18(1), Directive 2000/31 does not make provision in that regard for any limitation, including a territorial limitation, on the scope of the measures which Member States are entitled to adopt in accordance with that directive.
Consequently, and also with reference to paragraphs 29 and 30 above, Directive 2000/31 does not preclude those injunction measures from producing effects worldwide."
Uh, no. Why is no one pointing out the obvious, which is that claiming that you have jurisdiction over the entire world is essentially an act of war?
Claiming extraterritorial rights without a corresponding treaty has been the cause of many wars throughout history.
So regardless of the reasoning offered in the quoted paragraphs, absent the consent of the United States, an EU court does not have the authority to order an American entity to do anything outside of the borders of Europe.
Saying "But, the internet" is not a source of legal authority.
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That's supposed to say "if I was Facebook" not "would".
I need to start using preview.
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Facebook could argue it's void under the UN charter because it infringes on the sovereignty and territorial integrity of every other UN member state.
The UN charter also has a pre-emption clause that states it is superior to and can over rule any other ratified treaty.
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It seems that the CJEU agrees with your assessment.
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Spin it as a 'trial period', to 'check the viability' of such a move given the 'increasingly problematic legal landscape in the EU'.
Thing is though as bad as rulings like this are for Facebook they stand to be devastating to smaller companies that might compete with Facebook, so I rather doubt that Facebook would risk the public and political backlash for something like this, as ultimately(and much like the filter tax will be for Google) it's almost certain to be a net benefit for them.
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There's supposedly a method of catching monkeys that involves cutting a hole in a stump just big enough for them to stick their hand in, then putting some food in the stump. The monkey reaches in, grabs the food, but then can't pull their fist out. Even when they see humans coming with a net, they won't let go of the food to save themselves.
Internet companies are the monkey...
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You wrote my post for me. Just imagine if FB cut off all traffic to every IP in the EU just for a day. If that didn't foment an insurrection to get rid of the morons in their government(s), I'll bet a week would. Same for YouTube.
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Maybe if politicians got out of everybody's faces, they wouldn't get called all the descriptive terms they fit. What is it when you decide to limit what everyone in the world can say about someone or some thing? I call it fascism, authoritarianism, totalitarianism, fucknutism and a lot of other isms. Be prepared to filter everything in 175 languages 975 dialects and 2482 slangs and maybe even morse code, law enforcement code, phraseology and semaphore distress flagging, phonetics... lol...
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To have a treaty you must have two or more parties in agreement to the treaty. No doubt there will be US politicians loving this EU directive.
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Censoring 'anonymous coward' would suck for us chickens at Techdirt!
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We do have a treaty. It's the UN charter and it says we have to respect each others sovereignty in some way.
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Extraterritoriality
@Igualmente69 You ask: Why is no one pointing out the obvious, which is that claiming that you have jurisdiction over the entire world is essentially an act of war?
Because we've all gotten so used to it when the United States does it. Remember Julian Assange? Australian citizen acting outside the U.S., but the U.S. wants to arrest him and try him for "violating" American law, which he has never arguably been subject. Or Manuel Noriega, head of state of the supposedly sovereign nation of Panama, arrested and brought to the U.S. for "violating" U.S. drug laws again, for actions taken outside the U.S.
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Re: Extraterritoriality
It's not the same thing.
The U.S. and Australia have an extradition treaty and all the U.S. did was pursue extradition. The U.S. and the U.K. also have an extradition treaty.
Noriega was more the supposed head of Panama. He came to power in a coup like situation and the U.S. was not bound to recognize him as a legitimate head of state. We have treaties with Panama that are supposed to guarantee democracy in our countries so his claim to be the legitimate head of state is extra-dubious. We don't recognize the Taliban's government in Afghanistan or FARC as legitimate states either.
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And start buying stock in VPN companies, I think that VPN sales in Europe are about to go through the roof.
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"Conceptually, you can see how the court would think this. Obviously, ... " so it's agreed to be obvious, and the CJEU does try to explain what it has in mind, including "... defamatory content of an equivalent nature does not require the host provider to carry out an independent assessment, since the latter has recourse to automated search tools and technologies." So it's somewhat clear what obligations the CJEU is trying to impose on the provider.
But then according to Maznick "Again, all of this is done without even the slightest thought to how that is likely to be abused ..." which implies Maznick didn't actually read the stuff he quotes, or more likely he already knew what the conclusion should be before he began thinking generously (I'm assuming he did start thinking).
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I have not read the ruling but from its description by you and 3 other news sources it appears to order facebook to develop an artificial intelligence with the human cognition of a mature practicing judge or lawyer so it can determine if that arrangements of letters is in fact defamatory in either the jurisdiction its in or in Austria.
I would just ban the name like I stated above.
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I love this ruling!
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Re: I love this ruling!
I don't care about facebook and will continue to hate facebook until it lives up to its promises about user privacy and safety that it made when it zuck initially rolled it out. I expect that to happen when hell freezes over.
It's sad EU governments are headed to the US freedom of speech watch-lists/sanction-lists with China if the EU chooses this specific path in very many cases.
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Re: Re: I love this ruling!
The message of "you are likely to end up on US sanctions lists with Iran, China, and North Korea" is also simple.
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Re: I love this ruling!
We don't hold car manufactures responible for the customers driving, why should this be any different.
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Re: I love this ruling!
The alternative to not controlling users and what they say is letters to the editor, in which case you do not have social media, but conversations permitted and controlled by companies, or worse, by algorithms.
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"...but wtf, driving Facebook and others out seems to be exactly what the EU wants (as long as they get to keep the taxes paid by those companies)."
And of course if the EU manages to drive Facebook et al. out, not only do they lose out on said taxes, you can bet your ass that the rules which ran off facebook and Google in that scenario will very effectively ensure no one within the EU is dumb enough to even try starting a competitor service.
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"until the proverbial boot gets a good, lasting print on everyone's faces we apparently just can't be bothered to realize how current mega-sites are utterly inadequate for the purpose, and why we should give a damn."
Hear, hear.
Until the sheep discover that the legal internet under EU rules is a barren wasteland and start kicking up a fuss, nothing will change.
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"The monkey reaches in, grabs the food, but then can't pull their fist out. Even when they see humans coming with a net, they won't let go of the food to save themselves."
True enough, that IS a thing.
Except that in this case the hunters aren't netting the monkey but taking turns screwing it. After the first one, that monkey will leave.
Companies always look at the bottom line. And the bottom line here is that neither youtube nor facebook can, in reality, operate under article 13, and still make a profit in the EU.
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Facebook can still make a profit in the EU. They just need to cut down on content and ramp up on creative surveillance and artful phrasing in their terms of service.
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Who could afford to start a competitor service? Facebook should just pull out of the country. NO servers, no office, nothing. It'll be slower for those in the EU, but at least all the crap happening would be done and over with for the most part.
In fact, every American company should just pull out. When they need more money, they come up with yet another excuse to sue or fine 1 American company, and it's always far, far, far more money than any EU company.
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Re: Re: I love this ruling!
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"Who could afford to start a competitor service?"
No one. But someone sold the inept politicians in the EU the pipe dream that with US companies tossed out, EU competitors to Facebook and Google would magically emerge.
What they refuse to hear is the fact that the legislation they are putting up will hit any potential EU contender just as hard as a US one, so the only thing that happens is that european citizens end up deprived of services the rest of the world are free to enjoy.
Gorbachev said it best in the 90's when he compared the emerging EU with the bad old Soviet union where political dictates trumped fact and rationality...
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"Facebook can still make a profit in the EU. They just need to cut down on content and ramp up on creative surveillance and artful phrasing in their terms of service."
That largely depends on how articles 11 and 13 are implemented. If a cost-benefit analysis and risk-threat assessment indicates the running costs may exceed profitability - which is likely - then they're gone.
Which won't impact Facebook much since VPN access is still a thing, but sure as hell will remove facebook tax revenue, server farms and jobs from the EU.
I find a certain morbid fascination in watching the US and EU competing about making their respective national authorities more hostile and unsustainable to IT companies. So far the EU appears to be winning.
Ironically even China is today LESS bad than the EU when it comes to the legal background in realistic operation of IT services, at least not demanding the OPERATORS do the policing.
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What the hell?
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Re: What the hell?
sorry for the bad english but i'm to lazy to fix them all.... and the videos where on TED site.
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