An Austrian appeals court ordered Facebook to remove political criticism of an Austrian politician this week, ruling that posts calling Green Party leader Eva Glawischnig a “lousy traitor of the people” and a “corrupt klutz” are hate speech.
The ruling by the Austrian court doesn’t just require Facebook to delete the offending posts in Austria, but for all users around the world, including any verbatim repostings. That would be an aggressive precedent to set, since Facebook has historically enforced country-specific speech laws only for local users.
Facebook has removed the posts in Austria, which were posted by a fake account that had previously spread misinformation about other candidates. It has yet to remove the posts globally, a lawyer for Glawischnig told The Outline, because it is appealing the case.
American legal experts speaking to The Outline called the ruling “troubling,” and warned of the potential ramifications Facebook and its users could face as a result.
“From what I am reading, this sounds dangerous and short-sighted,” Daphneth Keller, director of intermediary liability at the Stanford Center for Internet and Society, told The Outline via email. The ruling sends a signal to other countries that they too can impose their laws on the rest of the world’s internet, she said, which is an issue considering some have strict restrictions on speech.
“Should Facebook comply globally with Russia's anti-gay laws, or Thailand's laws against insulting the king, or Saudi Arabia's blasphemy laws?” Keller said. “Would Austria want those laws to dictate what speech its citizens can share online?”
Facebook is generally willing to voluntarily remove hate speech, which it defines as content that “directly attacks people” based on their sexual orientation, race, and other identities. The company has to follow the law of the land in whatever country it’s operating, although it doesn’t always comply with the requests it finds too broad or legally insufficient. India submitted 7,289 requests from July 2016 to December, but Facebook only produced data in about 52 percent of those cases.
“This sounds dangerous and short-sighted.”
Governments around the world try to police Facebook, and have laws that require Facebook to turn over data. Some countries have very particular rules, like Thailand’s law that you can’t disrespect or criticize the king or queen. Others like Austria’s neighbor Germany have especially strict rules against hate speech, which it defines as negative comments about a certain class or “incitement of the masses.”
Under US law, which defines hate speech as that targeting a protected class, calling a political leader curse words or “lousy” would clearly be protected by the First Amendment. But this Austrian court believes it should be able to enforce its laws globally because the alleged hate speech infringed on Glawischnig’s rights regardless of where it was seen.
“The content of the posting is a clear infringement of our client's rights, as it is pure hate speech,” Alexander Nessler, a lawyer for Glawischnig who worked on the case, told The Outline. “It is just an accumulation of swearing words. She was called like 'a member of a fascist party. She was named things that are even hard to translate in English, it is more particular in German. But just very ugly swearing words.”
When The Outline pushed Nessler, asking if insults shouldn’t be protected by free speech laws, Nessler said insults without context should be illegal. “It always depends on the context, yeah?” he said. “Mere insults that have no political grounds, that are not really taking any factual basis into consideration, but only have one goal, which is to create a negative image of a person in public, should of course not be legal.”
What options does this leave for Facebook, a company with a $433 billion market capitalization, which is $59 billion larger than Austria’s GDP? Couldn’t a company as large and influential Facebook shrug off Austria's ruling as ridiculous, refuse to remove the posts globally, and drop out of the Austrian market if the government continues to press its position? After all, Facebook European headquarters is in Ireland, not Austria.
But Keller says that Facebook is in a tough spot. “There will be legal commentators who say ‘US courts won't enforce this,’” Keller says. “But US courts are not really where the game is. The issue is enforcement outside the US, where governments can seize assets, arrest employees (as has happened in Brazil for example), or disrupt business in a way that really hits the companies' bottom line.”
“This is just an insult, so this can't be justified by freedom of speech anymore.”
Facebook’s headache probably won’t be over anytime soon. Nessler, Glawischnig’s lawyer, says that this case will help set a precedent in Austria, as one of the major outcomes of this cases was that two courts ruled that Austrian law is applicable to Facebook.
Facebook’s argument, as Nessler recalled, was that “the content of the posting is just political criticism, which is still in order, so what's the big deal?” He and his client did not agree that the posts were political criticism, he said, and neither did the court. “If you just say someone is an asshole or someone is a bitch or whore — and this is the direction these postings actually went — then this is no longer political criticism,” he said. “This is just an insult, so this can't be justified by freedom of speech anymore.”
Rulings like this — that apply Austria's and Europe’s generally more restrictive laws on speech — work to chill political criticism not just in the countries that have these laws, but around the world.
Another offending post described Glawischnig as a “corrupt bumpkin,” according to NPR. Any reasonable person should be able to see the difference between this and hate speech that targets people for their ethnicity or religious affiliation, for example, but the Austrian court seemed to find it just as offensive — a decision that allowed a politician to silence her critics. “The political aspect makes the ruling particularly troubling,” Keller said.
Facebook did not reply to a request for comment.