We all know the old saying about the road to hell being paved with good intentions. The EU is busy building a three-lane highway that it leads to a particularly dark place. Three EU Directives recently approved of under judicial review have wide-ranging impact on the internet, affecting global commerce as well as free-speech.
Although each of these Directives speak to different aspects of the internet, the commonality — and perhaps the biggest problem — is that all of them push the notion of extraterritoriality. Put more simply, the EU is trying to flex its censorship muscles around the world.
The three issues are the “Right to Be Forgotten,” the “General Data Protection Regulations” (GDPR), and recently announced anti-hate speech regulations. Each of these doctrines have some degree of moral merit. Given the widespread abuse of the internet, it’s easy to be sympathetic to many people who suffered that abuse.
Unfortunately, the EU has decided to redesign the information superhighway with a series of landmines, speed bumps and exit ramps to Speech Jail.
The Right to be Forgotten (RTBF)
This doctrine has been around for several years. Its core purpose is to protect individuals from having old (and ostensibly no longer relevant) information about them made available to the public.
The most famous RTBF case is Google Spain SL, Google Inc. v. AEPD and Mario Costeja González. In 2010, a minor businessman of no public import found that a Google search would bring up a link to a 1998 newspaper public notice that stated he was in arrears in property tax. Although the tax issue had long been settled, that news was never reported.
González filed a complaint with Spain’s Data Protection Authority (each EU nation has one) who ruled that the old news about his tax arrears served no public interest, and interestingly, did not demand removal of the story from the newspaper’s archive, but held that Google must block it from the national domain on the basis that Google’s market share (well over 90 percent in the EU) amplified the impact of the old story and that Google’s “pervasiveness” was responsible for privacy harms.
The case went to the European Court of Justice in 2014, who upheld the ruling that Google must de-index the article from the country specific domain “Google.es.” Of course, users can easily search the “mothership” of Google.com and still find the article.
Flash forward to today, where a French citizen filed a similar complaint with CNIL (France’s DPA) in 2016. That agency went further than the Spanish agency and found that not only did the old article lack public interest and damaged the privacy rights of the complainant but held that limiting a de-indexing order to a country-specific domain did not solve the problem.
Thus, CNIL ordered Google to de-index the article worldwide. Google is not taking this lying down, and argued to the European Court of Justice this month that “the French CNIL’s global delisting approach seems to be very much out on a limb,” a lawyer representing Google told The Next Web.
In 2016, CNIL slapped Google with a fine of $116,000 for failing to remove the links from its global websites. Judgment may be rendered within the next several months.
One of the most problematic aspects of applying RTBF globally is that it leaves the determination of what is and isn’t in the public interest to bureaucrats instead of journalists and readers. Several years ago, when the Directive was being drafted I debated a Eurocrat in favor of the law at a media law conference in London.
I asked him, “Do you have any children?” He replied, “yes.” I then asked, “Do you mean to tell me that if you were taking your children to a new dentist you wouldn’t want to know whether he had been convicted of child abuse twelve years earlier?” He had no answer.
The end result? Citizens, bloggers, academics and journalists seeking information would no longer have the “one-stop shop” of Google and would have to search hundreds of newspaper or blogs’ archives to find relevant information. They are all lazy enough already (myself included), and as hard as it is to justify Google’s awesome monopoly power, it represents a major step backward for research and information. Failing that, free marketeers must build alternative doorways to history.
The General Data Protection Regulation
Again, the good intentions are there: the GDPR requires that companies who conduct business online have an obligation to tell readers and consumers specifically what data about them is collected, what the company does with that data, how long it is held, with whom they share that data, and they must provide an opportunity for readers and consumers to “opt-out” of such data collection.
In a time where you and your data have become commodified, apprising consumers of all the facts sounds like a good idea.
But being the EU, they created a dense 88-page thicket of unclear regulations that are onerous to small businesses who may do business overseas, hampering innovation and international trade. Wired Magazine outlined the effect on small business thusly:
“The law’s impact will extend well past the web giants. In March, Drawbridge, an ad-tech company that tracks users across devices, said it would wind down its advertising business in the EU because it’s unclear how the digital ad industry would ensure consumer consent.”
Violators face fines of up to 4 percent of annual global revenue. For Facebook, that would be $1.6 billion; for Google, $4.4 billion, according to Wired.
The One-Hour “Illegal Content” Rule: A Trojan Horse
Speech-stifling proposals are moving ahead in the EU under the guise of combating terrorism online.
On September 12 in his State of the Union Address, EU President Jean-Claude Juncker said: “Europeans rightly expect their Union to keep them safe. This is why the Commission is today proposing new rules to get terrorist content off the web within one hour — the critical window in which the greatest damage is done.”
Well, gosh, that sounds great, doesn’t it? I mean, who could possibly support “terrorist content?” (Let’s leave Bill Ayers and Linda Sarsour out of this for the time being.) But dig a little deeper and we see that this proposal is a trojan horse full of Thought Police.
The EU began structuring the required protocols to which Juncker is referring as early as March, and that underlying policy discussion goes much farther than just banning Al-Qaeda recruiting videos. The underlying protocols also seek to defeat “incitement to hatred and violence.” And that’s where the train goes off the rails.
Living in a fantasy land, the Eurocrats laud the big data giants (Facebook, Google, Twitter) for removing “on average 70 percent of illegal hate speech notified to them.” These are the same companies who have been pilloried for uneven, arbitrary and illogical decisions about what constitutes “hate speech.”
A woman on Facebook decries her children being the targets of racial epithets and what happens? Her post is deleted for violating “community standards.” In a posting about the Vietnam War, one Facebook user displayed Nick Ut’s iconic “Napalm Girl” photograph. In what can only be described as sheer idiocy, Facebook censors took seriously complaints about nudity and removed the posting. USA Today reported that earlier this year Facebook deleted postings of The Declaration of Independence – arguably the most important document in U.S. history – on the basis of “going against hate speech standards.”
Conservatives and human rights groups each allege that their social media postings are frequently and unfairly banned. While Facebook claimed to be protecting the public from “hate speech,” Pro-Publica discovered that at the same time Facebook was allowing advertisers to cater to anti-Semites, enabling advertisers to specifically direct their sales pitches to people who expressed interest in the topics of “Jew hater,” and “How to burn Jews.”
Aside from the interminably difficult question of defining hate speech, and aside from the very real problem of Troll Armies blitzing Facebook with a Heckler’s Veto about a topic they don’t like, the EU Commission is “proposing a legally binding one-hour deadline for content to be removed following a removal order from national competent authorities.”
You read that right: one hour. I’ve waited that long to find out why my cable TV service is out. You think anyone can reach a human being at one of these data giants in an hour?
Extraterritoriality: Dumbing-Down US Free Speech Law
Most Americans find the idea of foreign law being applied to them as repugnant. At least in the sphere of free speech, Congress and the courts have agreed that to a large extent such judgments are not enforceable against American entities.
For example, The SPEECH Act is a federal law that forbids the enforcement of a defamation judgment based on substantive foreign law that does not meet First Amendment standards. While that act is limited to defamation, other case law has held that American entities are entitled to Due Process under American law when a foreign entity attempts to enforce an overseas judgment in the United States.
The SPEECH Act was largely motivated by the case of Rachel Ehrenfeld, a writer and research scholar who alleged that Saudi billionaire Khalid bin Mahfouz had financed al-Qaeda through his bank and charitable organization.
Ehrenfeld, a U.S. citizen based in New York, had not written or marketed her book internationally and refused to acknowledge the jurisdiction of the British court over her case. Her refusal resulted in the British Court awarding a default judgment against her which was not enforceable in the United States.
That’s all well and good for individual bloggers or writers like Ehrenfeld who have no assets in a foreign country to be seized by court order. But news and public interest organizations who have bureaus in those countries are at risk. In addition, many nations forbid foreign ownership of media outlets, so many news organizations have had to create partnerships or local subsidiaries subject to those nation’s laws.
In 2008, actress and animal-rights activist Brigitte Bardot was convicted in France on charges of “inciting racial hatred” for her criticism concerning the ritual slaughter of sheep during a Muslim feast. In the UK, Harry Taylor, an atheist who placed drawings satirizing Christianity in an airport prayer room, was convicted of “hate speech” in April 2010 and given a six-month prison sentence.
While it is unlikely that such judgments would be enforced here (as in the case of Rachel Ehrenfeld), if the European Court of Justice rules that Google (and others) doing business in Europe must block “offensive” content on a worldwide, and not just a European scale, there’s little doubt Google and others would cave: There’s just too much revenue at stake. (Google is already in the process of building out “Dragonfly,” a pre-censored Internet search engine in collusion with Chinese government).
If Silicon Valley acquiesces to extraterritoriality, as a result, our eyes and ears overseas could be shut down, and the world would be thrown back to the 1950s, when people yearning to hear the truth about tyrannical governments would huddle in a basement around a radio tuned to Voice of America at the risk of arrest.
Charles Glasser (@MediaEthicsGuy) was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and the CUNY Newmark Graduate School of Journalism and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.