The Contribution of EU Law to the Regulation of Online Speech

Abstract

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play in the regulation of online speech. The note argues that the alleged shortcomings of the Glawischnig- Piesczek case are actually the result of a convincing interpretation of the applicable EU law while respecting the prerogatives of the member states in the areas of speech regulation, jurisdiction, and comity. Most of the issues that commentators wanted the ECJ to decide were beyond its reach in this case. The paper argues that EU law’s contribution in the field of online speech regulation should be regarded as a realization of the dangers of illegal online content, resulting in an effective protection of the interests harmed. This implies the rejection of a “whack-a-mole” approach towards illegal online content in favor of more effective ways to protect against the harm caused by illegal online speech. At the same time, the case highlights the necessity to establish a workable theory of jurisdiction and comity in the digital age.