Speech Across Borders

Privacy and Security, Networks, the Internet, and Cloud Computing, Internet, Media and Content, Intellectual Property and Copyright and Trademark

Article Snapshot

Author(s)

Jennifer Daskal

Source

Virginia Law Review, Vol. 105, pp. 1605-1666, 2019

Summary

Several courts have ordered online service providers to take down content worldwide. Other rules restrict speech depending on the nationality and location of the speaker. Tech firms also curate content on a global scale.

Policy Relevance

Take-down orders should generally apply only within a court’s usual jurisdiction. Global orders should support strong interests and should not threaten free speech.

Main Points

  • In several cases worldwide, courts have ordered private technology companies such as Twitter and Google to monitor and take down unwanted speech, regardless of where in the world the speaker or audience is located.
     
  • The European Court of Justice (CJEU) ruled that EU law did not bar an Austrian court from ordering Facebook to remove defamatory posts about a politician worldwide.
     
  • France demanded that Google delink embarrassing information from a search for an individual’s name upon request globally (the “right to erasure" or “right to be forgotten”); the European court ruled that Google’s delinking need be effective only within Europe.
     
  • Cases in which courts have issued global take-down orders vary widely; simply claiming that global injunctions are good or bad fails to grapple with the complexity of these cases.
     
    • Requiring that content be delisted from search results impinges on free speech less than the requirement that the content be taken down entirely.
       
    • Orders asking for removal of specified information are less onerous than orders requiring ongoing monitoring and take-down of unspecified content.
       
  • Tech companies voluntarily curate content on a global scale, sometimes worldwide and sometimes regionally.
     
  • Because of Russian attempts to influence elections in the United States, Facebook now allows only US residents to purchase political ads or ads related to social issues such as immigration, abortion, and terrorism.
     
    • The Senate is considering legislation restricting foreigner’s speech, but these restrictions might be unconstitutionally broad.
       
    • These policies represent a new kind of geographic segmentation based on the geography and nationality of the speaker.
       
  • Courts should presume that orders to take down or delist content should apply within the court’s usual jurisdiction only, but that presumption could be overcome in some cases.
     
  • Technology companies could commit to more transparency about policies for removing and delisting content, and encourage input from the public.
     

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