What the EU’s decision on Facebook means for social media

Illegal content explained

Illegal content includes not just defamatory content, but also a breach of privacy and malicious falsehoods.

A breach of privacy is typically the public disclosure of private information and the unauthorised use of someone’s name or picture. Defamatory content is the false and unprivileged statement of facts that are harmful to someone’s reputation. A malicious falsehood is similar to defamatory content, but is typically a lie that was uttered with malice – in this case, the defendant knew the statement was not true or did not take proper care to check.

As the ruling states it will “block access to that information worldwide within the framework of the relevant international law”, such a ruling will affect any of the EU member states, as well as those countries outside the EU that have the appropriate international treaties with an EU member state.

This essentially allows the court of an EU member state to declare a post to be illegal and request the offending post, and any equivocal content, to be blocked from being viewed on the online platform within the country of the member state, the other EU member states, and any country outside the EU that has the appropriate treaty with an EU member state.

One area that could be subject to interpretation is in the second point of the declaration, where it refers to “content of which is equivalent to the content of information which was previously declared to be unlawful”. This is apparently designed to prevent people from sharing information that has been declared illegal, but altering it so that it is not exactly the same. However, what “equivalent” means precisely could be subject to interpretation.

A Facebook spokesperson says: “This judgment raises critical questions around freedom of expression and the role that internet companies should play in monitoring, interpreting and removing speech that might be illegal in any particular country.

“At Facebook, we already have community standards which outline what people can and cannot share on our platform, and we have a process in place to restrict content if and when it violates local laws.

“This ruling goes much further. It undermines the long-standing principle that one country does not have the right to impose its laws on speech on another country. It also opens the door to obligations being imposed on internet companies to proactively monitor content and then interpret if it is ‘equivalent’ to content that has been found to be illegal.

“To get this right, national courts will have to set out very clear definitions on what ‘identical’ and ‘equivalent’ mean in practice. We hope the courts take a proportionate and measured approach, to avoid having a chilling effect on freedom of expression.”

Ultimately, any online platform wanting to operate within the EU must now abide by any requests made by the EU member nations to block or remove illegal content. This is regardless of where the organisation’s headquarters are located or where the content was posted. It only needs to be viewable, and found illegal, within the EU.

In the coming months, as content is declared to be illegal, online platforms can expect court orders requesting that they take down or block the offending material, as well as any “equivocal” content, such that it is not viewable within the EU and any of countries that have the appropriate treaties with EU member states in place.

The past few years have seen a fundamental shift in the various EU governments’ approach to the internet. Previously, there had been a lack of regulation of the web, but there is now an increasing trend for governments and the EU to want the internet to become a more regulated space. 

For example, Article 13 of the forthcoming EU copyright directive promises to make online platforms more responsible for copyright-infringing material being hosted on their websites. “The judgment is really saying: get ready for more EU regulation,” says Adediran.

Brexit impact unlikely

Despite the uncertain nature of the UK’s future relationship with the EU, it is unlikely that Brexit will have any impact on this. The UK has been proactive in harmonising its laws with those of the EU. For example, the Information Commissioner’s Office has previously stated: “The government has made clear that the General Data Protection Regulation will be absorbed into UK law at the point of exit, so there will be no substantive change to the rules that most organisations need to follow.”

However, this increased regulation will mean increased costs, as online platforms will be expected to comply with them. Although this is less of an issue for larger companies, smaller online platforms and startups may struggle to meet the demands of greater regulation, which could stifle innovation.

James Klymowsky, CEO of Peddler, says: “The regulators didn’t have any malicious intent, but were ultimately trying to protect the privacy of the users. They didn’t really consider how much money it can cost the startup or scaleup to comply with some of the regulations being put out there.”

Ultimately, maintaining an awareness of the shifting judicial landscape, especially with regard to the regulatory requirements for each region they operate in, will ensure organisations are not taken by surprise.

Adediran adds: “There is going to be a much greater burden on companies, both large and small, to effectively police their content and make sure they act expeditiously when they are informed of defamatory comments.”