The early years of unfettered free speech online, where citizens could openly discuss topics like democracy and freedom and condemn dictatorships, was long predicted to end in the hands of those very dictators. Countries like China and Russia were to be the villains that rid the internet of free expression in order to suppress dissent. Instead, it is the EU that has emerged as the single greatest threat to global digital freedoms. Its latest foray into digital repression comes courtesy of an EU Court of Justice advocate general, who argued that the EU should be granted the right to suppress free speech globally, censoring any discussion in any country with which it disagrees.
One of the greatest dangers with the EU’s movement towards greater legislative intervention in the digital realm is that to date its attempts have all backfired spectacularly. GDPR not only rolled back most of the continent’s previous protections, including permitting facial recognition for the first time, but built so many loopholes and exemptions into its enforcement that it has become nothing more than empty words rather than an actual enforceable law.
In fact, the EU Commission itself perhaps put it best last month. When asked what it saw as the benefits that GDPR has brought to the EU’s citizens, the Commission offered only silence.
If the EU Commission cannot think of a single benefit that GDPR has brought, it speaks volumes to the reality that the economic exploitation of EU citizen personal data is simply too valuable to the EU economy for lawmakers to risk upsetting social media companies.
The EU’s latest attempt to curb Internet freedoms, involves the case of an EU lawmaker who became aware of a Facebook post criticizing the official political policies of her party. An anonymous citizen had shared a news article about those policies on Facebook and made three comments criticizing the policies. The post made no personal attacks on the lawmaker nor any reference to a protected class. It was what in the United States would be considered a mundane social media post criticizing the policy of a political party.
Like many politicians across the world, this particular lawmaker wished to have such negative commentary censored. However, rather than banned only in their own country, the lawmaker wished for the power to suppress any similar criticism of their policies by anyone globally. A US citizen residing in the US expressing similar sentiments should have their post deleted according to this interpretation.
One of the EU Court’s advocate generals agreed and this week issued nonbinding guidance to the Court that the EU should force Facebook and other social media platforms to grant EU lawmakers the right to suppress negative commentary about themselves globally in all countries.
If the EU succeeds in its quest, it is almost guaranteed that every government around the world will demand the same rights, permitting the repressive regimes of the world to censor global dissent.
This raises the question of how the EU views the benefits of its own lawmakers being able to censor global criticism of themselves versus the risks of the world’s repressive governments obtaining the same powers.
To examine the EU’s perspective on these implications, the EU Commission was asked for comment on three key concerns raised by this opinion.
The first was that if the EU were to obtain global censorship powers, “repressive governments from China to Russia would be almost guaranteed to demand similar rights, with China being able for example to censor all discussion of Tiananmen Square globally [and thus] why does the EU feel that the ability of countries to expand their censorship globally is not problematic?”
The second was that “the EU would not pursue global censorship powers without weighing the risks of empowering governments like China and Russia to obtain similar powers to censor all discussion of their governments globally. Has the EU published any of this deliberation? Can you comment on why you feel the benefits outweigh the risks in this case?”
Finally, given the substantial tension between the EU and Russia, the EU Commission was asked “Would the EU support the ability of Russia to obtain similar powers to censor criticism of its leaders on Facebook by EU citizens? If not, why does the EU believe only it should have that power?”
Asked for comment on these implications, the EU Commission noted that it does not comment directly on advocate general opinions.
Asked to set the advocate general opinion aside and simply answer in the general case, completely independent of that opinion, would the EU Commission support the right of governments of China and Russia to censor all criticism of their lawmakers globally and what research it had conducted on this issue regarding the risk/reward tradeoff of new censorship powers. The Commission declined to answer.
It is telling that the EU Commission would not comment on its adversaries gaining the powers it itself seeks and that it also could not point to research on the risk/reward tradeoff of the EU gaining new powers that will also confer onto its adversaries.
Therein lies perhaps the greatest challenge of the globalized Web. Every country wants the right to exert its control globally without granting the same rights to its adversaries.
The problem is that in a globalized Web, if the EU’s courts grant it the right to force Facebook to censor content globally that it disagrees with, it will set a legal precedent that other countries will follow, giving Facebook little choice but to comply with similar court orders in other countries.
In short, if the EU gains the right to censor criticism of its government by Russian citizens, Russia will also gain the right to censor criticism of its government by EU citizens.
The problem is that EU lawmakers once again are failing to consider the unintended consequences of their actions: in a globalized world with globalized companies, the censorship rights one government gains are the censorship rights that all governments gain.
Putting this all together, as governments across the world increasingly seek to censor global speech to force the entire world into compliance with their own perspectives on acceptable speech, it is increasingly unclear how the Web might survive this growing conflict without fragmenting.
