In an article on the Verfassungsblog [Constitutional Blog], PD Dr. Matthias C. Kettemann and his co-authors clarify misunderstandings in connection with the “Glawischnig ruling” of the Austrian Supreme Court.
The legal dispute had attracted attention last year. Former Green politician Eva Glawischnig-Piesczek had sued Facebook after she had been called a “rotten traitor of the people” under an article posted on the platform.
The Austrian Supreme Court, and previously the European Court of Justice, have now ruled that Facebook is obliged to delete not only the specific illegal insult, but also meaningful content.
Does this pave the way for worldwide internet censorship, as some people claim? The authors give us the all-clear.
To the complete article
Abstract
The decision on the injunction therefore does not lead the way to “worldwide censorship”. It does not even serve as a good precedent for the worldwide applicability of removal orders in defamation cases. As this is only a decision on the injunction, the question is likely to be discussed again in the main proceedings of the case.
In addition, as two Austrian commentators, Michael Otti and Nikolas Raunigg, remind us, the decision will in any case not be too “useful for despots”. After all, the actual power of judgments lies in the recognition and enforcement of the decision. Within the EU, as Otti and Raunigg note, such a framework exists. In Ireland, where Facebook’s European subsidiary is headquartered, the Austrian Supreme Court’s decision can be enforced. But the decisions of courts from authoritarian states cannot be enforced quite so easily. National courts could after all refuse to enforce injunctions by reference to violations of ordre public.
While it is understandable that human rights campaigners use this judgment as a wake-up call in the important fight for human rights protection online, it is unfortunate that the narrative of national courts imposing takedown duties on platforms without respect of borders is amplified uncritically. We need the necessary nuance and – ideally – some knowledge of the local substantive and procedural law. After all, let’s not have “the despots” get ideas.
Kettemann, M. C.; Kraml, G.; Rachinger, F.; Rauchegger, C. (2020): No “Censor for the World”: Clearing Up Misunderstandings on the Austrian Supreme Court’s Decision on Facebook’s Deletion Duties, VerfBlog, 2020/12/02, https://verfassungsblog.de/no-censor-for-the-world/.