Summer is winding down, and policymakers in Brussels are returning to an ambitious task: drafting new regulation for the Internet. Meanwhile, in Luxembourg, the Court of Justice of the European Union (CJEU) is deciding cases that will affect both Internet platforms’ operations and lawmakers’ choices in devising new laws. One case in particular, Glawischnig-Piesczek v. Facebook Ireland, has had surprisingly little attention, given how consequential it is likely to be. It calls on the Court to address the question at the heart of an ongoing political debate: whether and how EU Member States can require platforms to use automated filters in an attempt to detect and delete prohibited material in users’ posts.
The Court’s Judgment will, at minimum, interpret relevant provisions in the EU’s main existing Intermediary Liability law, the eCommerce Directive. It will almost certainly also tell courts – and lawmakers – something about more permanent limitations on state-backed filtering mandates, based on Internet users’ fundamental rights under the EU Charter. The case also raises a question, analogous to the one in Google’s pending “Right to Be Forgotten” case, about national courts’ power to order global takedown of expression or information that is legal in other countries.
The Opinion in Glawischnig-Piesczek by the Court’s Advocate General (AG) proposes unprecedented and troubling answers to all of these questions. If the Court follows his recommendations, it will likely disrupt both legislative agendas and the evolving human rights-based guidance about Internet content filters.