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CJEU ruling on fighting defamation opens the door for upload filters

September 20, 2019 In Design News,Digital Freedom

On 3 October 2019, the Court of Justice of the European Union (CJEU)
gave its ruling in the case C?18/18 Glawischnig-Piesczek v Facebook. The
case is related to injunctions obliging a service provider to stop the
dissemination of a defamatory comment. Some aspects of the decision
could pose a threat for freedom of expression, in particular that of
political dissidents who may be accused of defamatory practices.

“This ruling could open the door for exploitative upload filters for all
online content,” said Diego Naranjo, Head of Policy at EDRi. “Despite
the positive intention to protect an individual from defamatory content,
this decision could lead to severed freedom of expression for all
internet users, with particular risks for political critics and human
rights defenders by paving the road for automated content recognition
technologies.”

The ruling confirms that a hosting provider such as Facebook can be
ordered, in the context of an injunction, to seek and identify, among
all the content shared by its users, content that is identical to the
content characterised as illegal by a court. If the obligation to block
future content applies to all users on a large platform like Facebook,
the Court has in effect considered it to be in line with the E-Commerce
Directive that courts demand automated upload filters and blurred the
distinction between general and specific monitoring in its previous case
law. EDRi is concerned that automated upload filters for identical
content will not be able to distinguish between legal and illegal
content, in particular when applied to individual words that could have
very different meanings depending on the context and the intent of the user.

EDRi welcomes the Court?s attempt to find a balance of rights (namely
freedom of expression, freedom to conduct a business) and to limit the
impact on freedom of expression by differentiating between the search
for identical and equivalent content. However, the ruling seems to be
departing from previous case law regarding the ban on general monitoring
obligations (for example Scarlet v. Sabam). Imposing filtering of all
communications in order to look for one specific piece of content, using
non-transparent algorithms, is likely to unduly restrict legal speech –
independently from whether they look for content that is identical or
equivalent to illegal content.

The upcoming review of the E-Commerce Directive should clarify, among
other things, how to deal with online content moderation. In the context
of this review, it is crucial to address the problem of disinformation
without unduly interfering with the fundamental right to freedom of
expression for users of the platform. Specifically, the business model
based on amplifying certain type of content in the detriment of other in
order to attract users? attention requires urgent scrutiny.

No summer break for free expression in Europe: Facebook cases that
matter for human rights (23.09.2019)
https://www.accessnow.org/no-summer-break-for-free-expression-in-europe-facebook-cases-that-matter-for-human-rights/

CJEU case C-18/18 – Glawischnig-Piesczek Press Release (03.10.2019)
https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-10/cp190128en.pdf

CJEU case C-18/18 – Glawischnig-Piesczek ruling (03.10.2019)
http://curia.europa.eu/juris/document/document.jsf?text=&docid=218621&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=192400

Fighting defamation online ? AG Opinion forgets that context matters
(19.06.2019)
https://edri.org/fighting-defamation-online-ag-opinion-forgets-that-context-matters/

Dolphins in the Net, a New Stanford CIS White Paper
https://cyberlaw.stanford.edu/files/Dolphins-in-the-Net-AG-Analysis.pdf

SABAM vs Netlog ? another important ruling for fundamental rights
(16.02.2012)
https://edri.org/sabam_netlog_win/