Wednesday 16 October 2019

Adrian Weckler: 'Facebook faces a higher level of responsibility but court decision raises human rights questions'

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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.

There are two possible reactions to Europe's highest court setting tough new rules for Facebook to police its social network for defamatory or banned posts.

The first is one of relief. Finally, we think, the world's biggest online forum will have to take greater responsibility for some of the upsetting, awful stuff posted there.

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And they'll have to do it wholeheartedly. Up to now, Facebook's response to defamatory, nasty or rule-breaking posts has been that each offending item needs to be reported individually before action is considered. Even then, a taken-down post in one EU country might be available to access elsewhere.

Now, the European Court of Justice says the social media giant must be far more expansive in its response. Not only must it take down extra 'shared' or 'copied and pasted' versions of the original offending content, but the take-down must have effect worldwide.

If someone says something illegitimate about you on Facebook here in Ireland and domestic authorities deem it unacceptable, Facebook now has to make sure this can't be accessed on its platform from any other country in the world.

But with such great restrictive power comes concern, too.

Will this be used to suppress free speech? Can the country with the most oppressive freedom-of-speech laws take advantage?

To be clear, this is an EU ruling. So it's not as if Saudi Arabia or Myanmar now controls what we can or cannot see.

But the EU is a big, diverse place. Accession talks are now getting started with countries such as Albania, so heavily criticised by European media organisations.

The risk with this new principle is that online information may, in some instances, be governed by the sensitivities and motivations of the most oppressive regimes. Even in liberal democracies, there are clear differences in approaches. Would we take it lying down if a British court granted an order, on security grounds, that restricted access on Facebook across the world to first-hand accounts of alleged collusion between UK forces and loyalists?

If another country in the EU banned, on public order grounds, 'The Satanic Verses' or cartoons of another religion's icons, would we be happy with that? Should defamation rules in Ireland about high-profile individuals or public figures now be applied across the world?

"The [European Court] has repeatedly said in the past that filtering or monitoring by platforms can harm users' rights to privacy and to free expression/information," said Stanford University's director of Centre for Internet and Society Daphne Keller.

"So have international human rights bodies. So has the European Court of Human Rights. Here, the court does not even mention or consider those things. Its analysis only considers whether the filtering order might burden Facebook. Not a word about how the filter might affect the rights or interests of Facebook's billions of users."

To be fair, these are very big questions that were always unavoidable once the internet took over global publishing and communications.

One major practical loophole in the European ruling is WhatsApp. Facebook will argue that it cannot technically access WhatsApp messages because they are encrypted.

What will the new law make of this? Is there to be a new challenge to the principle of encrypted communications, as Donald Trump, David Cameron and Theresa May have (unsuccessfully) tried to establish over the years?

To date, tech companies have resisted attempts to compromise this basic privacy. But is the EU ruling a new front in that battle?

Irish Independent

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