The judgment contracts expression on a number of ways. First, it requires social media intermediaries to employ automated search filters to remove identical posts as well as “equivalent” content without regard to the context in which they may be posted. The filtering must also take place across all users. Second, it puts false faith in the ability of such filters to correctly identify and remove the impugned content. Third, contrary to the opinion of the Advocate General, the judgment leaves the meaning of ‘equivalent information’ vague by not defining it in precise or foreseeable terms. It also leaves it to the national courts to precisely define the parameters of any “equivalent” content in the injunction, without considering that the relevant court may not fully appreciate the limitations of the filters even when the terms are precise. Fourth, the required principle of proportionality and balancing of fundamental rights from the AG’s opinion, is not clearly stated or stressed, although it may be implied in the Courts understanding of “within a framework of relevant international law.” These shortfalls in the judgment may lead to over broad removal of content, including legal content, ultimately, infringing on freedom of expression.
Regarding the potential for global removal, ARTICLE 19 argues that “[t]he ruling also means that a court in one EU member state will be able to order the removal of social media posts in other countries, even if they are not considered unlawful there. This would set a dangerous precedent where the courts of one country can control what Internet users in another country can see. This could be open to abuse, particularly by regimes with weak human rights records.” Even in the present case, some of the content found to be illegal in Austria would likely have been found to be honest comment, and hence not unlawful, under UK defamation law.
Cathryn Hopkins, writing for Inforrm’s Blog, points out in an excellent analysis that on the positive side, the monitoring is restricted to content declared illegal by a court, meaning that it “does not relate to content that is the subject of a notice and take down request under Article 19 ECR that is complied with, or content that is subject to out of court settlement.” However, she warns that the ruling could lead to forum shopping since defamation laws are not harmonized. Plaintiffs may attempt to bring defamation cases in “claimant-friendly” jurisdictions knowing that they could result in global takedowns.
The decision establishes a binding or persuasive precedent within its jurisdiction.