The panel debates the decision in C-18/18 and the wider legislative and regulatory context of borders, global social media and transnational regulation of the internet. In C-18/18 Glawischnig-Piesczek v. Facebook the Court of Justice considered in a small three judge chamber litigation concerning an Austrian politician suing Facebook Ireland. There, the Austrian Supreme Court referred to the CJEU whether a host provider was obliged to remove posts and whether national courts can order platforms to remove content only within the national boundaries, or beyond (‘worldwide’).
The decision of the Court has been seen as having the capacity to determine whether domestic courts can impose monitoring obligations on digital platforms, and of what nature, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries. It features as one of a host of decisions at national and supranational level as to social media, the internet and the high-profile GDPR but also other measures such as the E-Commerce Directive. Beyond the specificities of search engines, monitoring and data protection authorities and territorial limits, the panel reflects upon Facebook as a global titan of transnational social media activity and its constant battle to evade jurisdiction controls under EU law. It considers the litigation strategy of Facebook as to the EU-US Privacy Shield in litigation ongoing before the CJEU concerning data protection authorities powers, individual enforcement of transnational agreements and worldwide jurisdiction.
The panel features speakers from a variety of perspectives, namely, EU data protection law, public international law and transatlantic relations.
Speaker Abstracts and Speaker Order
Facebook and EU law: False friends?
Facebook subscribes to significant amounts of EU law readily e.g. GDPR or subscribes to voluntary EU codes of hate speech with Europe contributing 25% of Facebooks global revenues. While has swiftly moved millions of Facebook users in the UK to US ‘control’ post-Brexit, it remains a strong advocate of EU law, even to the point of increasingly advocating for a global standard of the GDPR. It has helped along with Apple, Microsoft and Google nudge Privacy as Europe’s First Amendment. While post-Schrems, the amount of last instance EU courts engaging in key litigation as to Facebook mostly relating to jurisdiction is increasing. Yet it frequently involves it being subject to weak indirect host provider obligations. EU courts have also emphasises the global dimension to EU law even in such instances.
Is Facebook a good subject and object of the so-called ‘the Brussels effect’? How much is the global reach of EU law actually provable as to Facebook for such a secretive entity as Facebook?
The Facebook Oversight Board
Facebook is establishing a 40-person oversight board to pass rulings on whether or not content should remain on their platform. The board aims to represent all regions of the world, rulings are set to be released in multiple languages and decisions about content to be made expeditiously. Only one researcher, Kate Klonick, was invited in to observe the process that went into establishing the framework for this oversight board.
Klonick was embedded in Melno Park without a non-disclosure agreement, given full access to meetings and was able to record all the conversations and workshops. Throughout the process, she maintained her academic immunity, not accepting anything from Facebook, not even a free hotel room.
Facebook did solve many of huge constitutional problems presented by content moderation. But how this board will scale, whether it will be overrun with appeals and how will the public will perceive its effectiveness are all significant questions.
Natalia Menéndez González
Facial Recognition Technology and Facebook: another brick in the wall
Facial Recognition Technology (FRT) is in the spotlight nowadays due to its exponential adoption and potential impact on the technology, health and economy fields. Even before the iPhone X set its access control system by FRT, Facebook had put the technology into the mainstream with the face-tagging setting that later became Deepface, its current FRT feature empowered by Artificial Intelligence (AI).
Nonetheless, many privacy concerns have started to arise in both the U.S. and Europe regarding FRT (and its intertwining with AI further incorporates the concerns regarding the latter). Consequently, the pressure has increased the privacy scrutiny on Facebook, to the point that there has already been a number of cases against Facebook at this respect.
Global Platforms: Global Laws
In 1996 John Perry Barlow informed “Governments of the Industrial World” that in Cyberspace “You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear”. He was of course wrong, at least about the final part of that statement. Governments had already demonstrated the ability to regulate intermediaries and platforms in cases such as Cubby v CompuServe and Stratton Oakmont v Prodigy.
In fact the fear of perfect regulation through intermediaries was strong enough to lead to the implementation of statutory “mere conduit” provisions in §230 CDA and A.15 Ecommerce Directive. Over 25 years the wheel has slowly turned and now co-opted (intermediary) regulation is being seized upon by governments to leverage control into the online environment. However the first part of Barlow’s challenge remains – is this “moral”?
Assessing the Limits to the Law of Facebook
Are there any limits to the Law of Facebook? How can these be framed? The CJEU’s Glawischnig-Piesczek v. Facebook judgment dealt with the removal of certain defamatory content from Facebook under Directive 2000/31/EC. Two main issues arose in this decision: the type of contents that can be removed by platforms such as Facebook and the range of application of EU law. Taking this decision as starting point, this contribution will focus on the problem of privatisation of fundamental rights enforcement. I will discuss two points in this respect.
First, I will argue that the position of the state -its presence or absence- as well as the distance it assumes from the Internet platform matter, i.e. court injunctions are different from removal requests based on Facebook’s community standards.
Second, the debate on online adjudication by Internet platforms should not be framed in terms of constitutional law or fundamental rights. Internet companies or indeed computer programmes, algorithms and AI cannot be granted de facto powers of constitutional courts.
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