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Glawischnig-Piesczek vs. Facebook could determine the future of social media upload filters

Back in 2016, a Facebook post containing an article with a photograph of the Austrian politician was posted alongside comments calling her a “corrupt oaf,” “lousy traitor” and so on.
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Eva Glawischnig-Piesczek vs. Facebook is a legal battle between a former Austrian politician and the social media giant. The legal battle began when Piesczek demanded Facebook remove a post that contained alleged defamatory remarks against her.

Back in 2016, a Facebook post containing an article with a photograph of the Austrian politician was posted alongside comments calling her a “corrupt oaf,” “lousy traitor” and so on. According to the country’s laws, such “defamatory” comments made on a social media platform were deemed unlawful. In this connection, Piesczek’s legal team demanded Facebook to remove the post.

But Facebook didn’t budge until the Commercial Court of Vienna issued an interim injunction, after which it pulled down the post and disabled access to it Austria alone. Moreover, the court sided with the Austrian politician and advised Facebook to monitor and block such comments shared on the platform.

Piesczek and her legal team were however not satisfied with the initial judgment; they further appealed the decision to the Higher Regional Court of Vienna, which ended up asserting that Facebook should indeed remove and disable any future posts that defame Piesczek.

But then, the Regional Court of Vienna didn’t agree to the second part of the interim injunction that demanded Facebook monitor and remove such similar defamatory content across its platform. The court said that asking Facebook to monitor for such content will lead to a violation known as general monitoring obligation. According to the chief legal instrument of the EU: the E-Commerce Directive, general monitoring is forbidden.

General monitoring refers to searching for everything, and in this specific case, such monitoring is a threat to freedom of speech due to which it is deemed unlawful by the E-Commerce Directive.

This ruling didn’t satisfy the former Austrian politician, and she had further appealed to the Austrian Supreme court with added demands. Piesczek’s legal team asserted that Facebook must remove all such derogatory posts relating to her all across the globe even if such content is legal in other countries.

The Austrian Supreme Court, in turn, referred the case to the Court of Justice of the European Union (CJEU), the judicial wing of the European Union. Piesczek’s case happens to be the first content moderation case in the history of CJEU.

Now, it falls in the hands of the CJEU to determine whether Piesczek’s demands to remove similar content across the site by active monitoring comes under the aforementioned general monitoring obligation or not.

If the court rules that such kind of searching and filtering offensive content is a violation of the general monitoring obligation, then Piesczek’s case might be overruled. But if the CJEU does decide that searching and removing such derogatory content may not be a general monitoring obligation, it will then have to determine whether Facebook must remove such content only across Austria or all across the world in general.

This judgment holds great importance as it has the potential to influence free speech across the EU and the whole world as well. An overview of the Advocate General Opinion revealed that there is a high likelihood wherein Facebook may be asked to deploy filters to censor defamatory speech and take such content down.

From a free speech perspective, if the CJEU does rule in favor of deploying filters to remove criticism content, the EU and possibly all the other nations of the world may potentially face several negative consequences. Because much like so-called “hate speech”, defamatory expressions are highly dependent on the context.

Moreover, it has become repeatedly evident that automated content filters fail to understand the context and unnecessarily flag legitimate and normal content, resulting in an unfair censoring of free speech online. Also, such content filters can be abused by the elites in countries where law and democracy are a failing system.

Finally, coming back to the legal battle, it is to be noted that criticizing a national political figure on a public platform is deemed unlawful by Austria, whereas other western nations would consider it commonplace. While the comments about Piesczek are distasteful, they aren’t beyond the limits of legitimate and fair criticism commonly faced by politicians all across the globe.

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