Three years ago, Austrian Green Party politician and federal spokesperson Eva Glawischnig-Piesczek was the subject of a negative Facebook post. An anonymous user shared a news article about a Green Party position and under it included a set of comments criticizing the actions of her party. While in the United States criticism of elected officials is enshrined in law, under Austrian law she filed a formal complaint demanding that Facebook not only delete the post, but proactively ban all future reposts of the post and any future posts making similar comments. Earlier today Advocate General Maciej Szpunar of the EU Court of Justice advised that such a ban should apply worldwide, preventing any individual in any country in the world from being able to post similar negative commentary about the politician. While his findings are not binding upon the court, it is entirely conceivable that the court could rule that an EU politician now has the right to censor what Americans in the US are permitted to say. If upheld, repressive regimes around the world are almost guaranteed to enforce their own court orders requiring that all criticism of their governments be banned worldwide rather than only within their own borders. Could this be the beginning of the end for free speech in this global race to the bottom?
The facts at the root of the Glawischnig-Piesczek dispute are relatively mundane by American standards. An anonymous user shared a news article on Facebook and under it wrote three comments at the heart of the dispute criticizing the political policies of her party.
None of these were personal statements regarding her demographics or membership in a protected class, but rather political statements criticizing the official actions of her party.
Under American law, writing a Facebook post criticizing an elected official such as a Congressperson is one of the most sacrosanct aspects of democracy. Imagine if all criticism of the president was banned by law.
Under Austrian law, however, she found a sympathetic court system that demanded that Facebook remove the post itself, any exact copies of it and “equivalent content” that made similar allegations in different ways.
Earlier today an adviser to the EU court recommended that the ban take effect globally, meaning even US citizens would be prohibited from criticizing her along similar dimensions.
The EU’s attempt to reach beyond its borders is unsurprising. Across the world, repressive and democratic governments alike have been searching for ways to constrain the unfettered free speech that the Web has afforded the world’s citizenry.
Governments unaccustomed to criticism have found, much to their chagrin, that their ability to use violence to suppress criticism at home is no longer sufficient in a world when activists on the other side of the world are able to repeat those criticisms.
If the EU succeeds in its attempts to expand the reach of its court system to regulate speech globally, it will be only a brief matter of time before the world’s repressive regimes step forward with their own court orders to silence all dissent globally.
While China has managed considerable success in erasing inconvenient moments from its history like Tiananmen Square, it is only able to censor discussion within its own borders. American and European citizenry are free to condemn the government’s actions with impunity.
What will happen if the EU determines that its own courts are now free to suppress any topic globally? If the EU succeeds in requiring Facebook to censor criticism of EU lawmakers globally, it is a guarantee that China’s courts will demand that Facebook similarly censor all criticism of its own government globally, including wiping out all memory of its historical democratic movement.
The EU did not immediately respond to a request for comment.
Putting this all together, as the world’s democracies adopt increasingly heavy-handed approaches towards freedom of speech, they should be wary about the unintended consequences of those actions in emboldening the repressive regimes of the world.
In the end, perhaps the end of free speech will come from the race to the bottom that the Web is now undergoing or perhaps the mutually exclusive needs of the world’s increasingly authoritarian democracies and dictatorships will finally cause the Web to fragment into country-specific miniature internets, completing the final steps in reasserting local control over what was once the global Web.
