The Case of Sheikh Ali Salman [Bahrain]
On Appeal Contracts Expression
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The Austrian Court of Appeal ruled that Facebook must delete all hate postings and verbatim re-postings against Austria’s Green party leader, Eva Glawischnig, not just in Austria but worldwide. The case was brought by Austria’s Green party after Glawischnig was insulted on Facebook by posts from someone who didn’t use his/her real name. The Court said that an individual’s right to protection of dignity and reputation had to be balanced against the Article 10 right to freedom of expression, including political expression. However, it reasoned that the postings went beyond political comment and were clearly aimed at insulting and vilifying Glawischnig personally; they were not legitimate criticism; and they therefore could not be protected under Article 10 of the European Convention on Human Rights (ECHR).
This case is currently on appeal before the Austrian Supreme Court. The Supreme Court referred questions pertaining to the scope of the injunction to the Court of Justice of the European Union. The Advocate General delivered his preliminary opinion on 4 June 2019. The Third Chamber of the European Court of Justice delivered its opinion on October 3, 2019.
The Claimant is Austria’s Green party (Austrian Greens) and it brought the case on behalf of Dr. Eva Glawischnig-Piesczek, the party’s head and a representative in the ‘Nationalrat’ (National Council, or Lower House). The Respondent is Facebook Ireland Limited, the operator in charge of users outside the U.S.
On April 3 2016, an anonymous user with the username “Michaela Jaskova” uploaded on his or her profile an article from “oe24.at” showing Glawischnig’s picture and calling her “miese Volksverräterin” (lousy traitor), “korrupten Trampel” (corrupt bumpkin) and her party a “Faschistenpartei” (fascist party).
On July 7 2016, Glawischnig asked the Defendant to delete the post and to communicate the user’s real identity. After the Defendant neither deleted the post nor passed on the user’s identity, the Claimant issued proceedings in the Handelsgericht Wien (first instance court in Vienna) claiming that by publishing Glawischnig’s picture, the Defendant violated her right to control any use of her own image under § 78 Urhebergesetz (Austrian Law on protection of copyright). It also claimed that the comment, which was posted together with the picture, constituted an infringement of § 1330 Allgemeines Bürgerliches Gesetzbuch (ABGB or Austrian Civil Code), which protects people from hate speech. The Claimant sought an injunction.
The Defendant argued that it was governed by Californian law (site of its headquarters) or Irish law (European base) but on no account by Austrian law. Secondly, it referred to its host-provider privileges under the European Community’s E-Commerce-Directive (ECD) which excludes host-providers from liability for their users’ content. Facebook also alleged that the impugned comments were protected under the right to freedom of expression pursuant to Art. 10 EHRC.
The First Instance Court ruled in favour of the Claimant.
The Court delivered a per curiam opinion. It affirmed the lower court’s ruling in part, namely, that Facebook must delete the post, every post showing Glawischnig’s picture if the connected comment contained the expressions “miese Volksverräterin”, “korrupter Trampel” or “Faschistenpartei” and every post with verbatim content as soon as it was notified about it. It reversed the first instance court’s decision to the extent that it required Facebook to trawl through content to find posts that were similar, rather than identical, to ones already identified as hate speech.
The Court noted that §78 Urhebergesetz, Austria’s law on copyright protection, prohibits the publishing of people’s images if that would violate their “legitimate interest” and that §1330 ABGB, Austria’s Civil Code, protects people’s dignity as well as their reputation. It was agreed between the parties that Facebook did not publish the posts itself but acted as a host-provider under the E-Commerce Directive (ECD) which excludes liability for users’ content as long as the host-provider is not aware of any unlawful activities (Art. 16 ECD). However the Court said that once Facebook had been asked to delete the posts it became an accomplice in the violation of the Glawischnig’s right under §78 Urhebergesetz, because even an ordinary person without legal expertise would realize that the postings clearly constituted hate speech. In these circumstances the Court said that Facebook could not rely on Art. 16 ECD to escape liability.
The Court dismissed Facebook’s argument that it was governed by the laws of California, where it is headquartered, or Ireland, the base of its European operations. It ruled that blocking the hate posts in Austria wasn’t enough and they must delete the postings across its global platform. However, the Court also said that while Facebook could easily delete verbatim repetitions of the hate posts by automated process, it would be unreasonable to require it to monitor and control all content on its platform for postings similar to the ones in the original posting because of the vast number of its users. Accordingly, the Court reversed the lower court’s decision in this regard.
A spokesperson for Facebook has said it will appeal the Court ruling, according to a report in Fortune on May 11 2017.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision categorically states that hate speech cannot be protected within the right to freedom of expression in any circumstances. It also affirms that social media platforms are liable for its users’ content as soon as they are informed of illegal activity.
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