Europe's highest court ruled Thursday that Facebook could be ordered to track down and remove content globally if it was found to be illegal in one EU country.

The decision represents a major step toward forcing social media companies to take greater responsibility for what is posted on their networks, and will likely support efforts on both sides of the Atlantic to force tech giants to take more action against illegal content online.

In its ruling, the Court of Justice of the European Union (CJEU) said that EU law allowed local judges to order the world’s largest social network to remove illegal content, as well as delete material that conveyed a similar message under certain circumstances.

Such takedown orders could apply globally, as long as EU countries complied with international law.

Digital rights campaigners criticized the decision against Facebook.

"EU law does not preclude a host provider such as Facebook from being ordered to remove identical and, in certain circumstances, equivalent comments previously declared to be illegal," the Luxembourg-based judges said in a statement. "EU law does not preclude such an injunction from producing effects worldwide."

The decision was a blow for Facebook, which had claimed that such a step would harm freedom of expression, and that one country or region should not be able to export its laws worldwide.

“This judgement raises critical questions around freedom of expression and the role that internet companies should play in monitoring, interpreting and removing speech,” Toby Partlett, a Facebook spokesman, said in a statement. “We hope the courts take a proportionate and measured approach to avoid having a chilling effect on freedom of expression.”

The ruling gives further detail about how the Europe's so-called e-commerce directive — a 20-year-old legislation that grants companies such as Google and Facebook limited legal responsibility for the illegal content they host — should be implemented. Under current rules, the tech firms are required to remove illegal content once they are made aware of them.

It also highlights how Europe’s top court is grappling with applying the region’s digital rules across the global internet after the same judges ruled last month that France’s privacy watchdog could not impose some of Europe’s data protection rules, in most instances, across Google’s global empire.

While the Luxembourg-based court highlighted that such global takedowns from Facebook’s networks could only be permitted under specific circumstances, including being linked to court decisions, policymakers in Brussels and Washington, DC are now working to tighten rules on how platforms police their content online.

“This is an important ruling,” said Sebastian Schwemer, a researcher at the Center for Information and Innovation Law at the University of Copenhagen. “It will play into the wider debates about companies’ monitoring obligations of online content.”

Targeted monitoring

Thursday’s ruling stems from a lawsuit filed in 2016 by Eva Glawischnig-Piesczek, an Austrian lawmaker, who had requested that Facebook delete defamatory posts made about her by an anonymous user.

When an Austrian court sided with her, the company initially only removed the content from being viewed in Austria, but subsequent appeals had focused on whether such takedowns should apply globally, and if Facebook should be required to remove similar content once it has been made aware of the defamatory material.

Following the ruling by Europe’s highest court, her case will now be referred back to Austrian judges, who will make the final ruling about how to apply Thursday’s decision.

Digital rights campaigners criticized the decision against Facebook.

“The court’s decision opens the door for serious restrictions on freedom of expression due to the takedown of legitimate speech. Extending removal to the vague concept of “equivalent” content is harmful because the context as well as motivation of users re-sharing content may significantly differ with each re-upload,” said Eliška Pírková, Europe policy analyst at Access Now, a campaigning group.

The planned future legislation on illegal content online is described by the European Commission’s Digital department as a way to bridge regulatory and enforcement gaps.

The Luxembourg-based judges said their ruling would not force companies to actively monitor all material that was posted on their platforms, as Europe's current rules specifically prevent “general monitoring obligations.”

Instead, any monitoring of potentially harmful material should be linked to existing rulings from courts and be limited to specific cases of harmful material like social media posts that defamed individuals. Those restrictions, the court said, would ensure people’s freedom of expression was not hampered by the widespread monitoring of their online activities.

The court "assumes that a hosting platform can technically perform all this in quite a straightforward fashion for any type of right, but it is likely that some issues will arise in practice,” said Eleanora Rosati, an associate professor in intellectual property law at the Stockholm University.

Paving the way for Digital Services Act

The incoming European Commission has outlined plans for a so-called Digital Services Act, which is expected to include new responsibilities for online platforms over the types of content that is posted and shared online. American lawmakers are similarly discussing new legislation as current rules in both Europe and the United States mostly allow tech firms to side step responsibility for such material.

“Today’s CJEU ruling has clarified that nothing in the e-commerce directive prevents the global application. It is limited to court orders and doesn't apply to other forms of notice by users alleging content are illegal,” a spokesperson for the Commission said.

That follows widespread criticism that Facebook, Google and Twitter have allowed hateful, terrorist and false information to spread widely across their global networks.

The companies deny wrongdoing, but have been actively taking steps – through the use of content moderators and technology like machine learning – to clamp down on the worst online offenders.

The planned future legislation on illegal content online is described by the European Commission’s digital department as a way to bridge regulatory and enforcement gaps.

Europe’s highest court also took aim at the region’s implementation of existing rules that oversee how platforms like Facebook can be held responsible for online material.

“Existing and emerging divergences in the legislations and jurisprudence of member states in the field of intermediary liability hinder the good functioning of the single market,” the judges said.

This story has been updated.

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