Sunday 20 October 2019

EU rules that social media sites now legally responsible for taking down all banned or defamatory posts

Social media app icons on a smart phone (Nick Ansell/PA)
Social media app icons on a smart phone (Nick Ansell/PA)
Adrian Weckler

Adrian Weckler

Facebook and other social media networks can now be ordered by national courts to take down illegal, banned and defamatory posts with worldwide effect.

The landmark ruling from the European Court Of Justice means that Facebook and social networks can no longer say that they only have to remove posts when each one is individually notified to them.

And the online firms can also no longer limit the unavailability of illegitimate posts to the European country where the complaint was made, with Europe’s top court adding that the takedowns must have worldwide effect.

The ruling could have far-reaching implications for online defamation as well as freedom of expression.

It comes just a week after the Taoiseach criticised Facebook for not removing intimidatory posts targeting executives at Quinn Industrial Holdings.

Leo Varadkar said that Facebook needed to review its standards after the tech giant ruled a post comparing the management of Quinn Industrial Holdings to the notorious Shankill Butchers did not violate its rules. For years Quinn Industrial Holdings tried to have the 'Sean Quinn Community Page' removed, but it was only taken down after the shocking kidnap and torture of chief operating officer Kevin Lunney.

A key part of the judgement is that Facebook must take responsibility itself for removing shared versions of an illegitimate post and cannot claim that the post has ‘gone viral’ or has been copied and pasted to other parts of Facebook.

The ruling may also apply to private messaging services such as Facebook Messenger or Twitter Direct Messages, which are unencrypted and currently policed by social media firms for issues such as child abuse imagery.

However, it may not affect posts, images and comments shared on Whatsapp because Whatsapp is an encrypted service, meaning that the companies cannot technically access or view the content of messages..

And it only applies after notification via a complaint, court order, or other legal instruction, has been delivered to Facebook — the company is not being ordered to search out potential defamatory posts itself.

There have been a number of high profile cases recently involving social networks being slow or uncooperative in removing defamatory or fraudulent posts.

Earlier this year, RTÉ broadcaster Miriam O’Callaghan claimed that she had been defamed in a series of "false" and "malicious" adverts on Facebook and told the High Court that she intended to seek damages. The “false” ads first appeared on Facebook and Instagram in May 2018 and contained headlines wrongly suggesting she had left her job with RTÉ's 'Prime Time'.

“EU law does not preclude a host provider like Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal,” the Court said in a statement.

“In addition, EU law does not preclude such an injunction from producing effects worldwide, within the framework of the relevant international law.”

Facebook, which cannot appeal the ruling as it is from Europe’s highest court, criticised the judgement. A company spokesman said that it was not the role of social platforms to monitor, interpret and remove speech that may be illegal in any particular country.

“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,” the company said.

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

Last week, the same European Court of Justice found that Google does not have to apply the EU’s “right to be forgotten” globally.

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