On Thursday, a top European court ruled that Austria cannot force Google, Meta, and TikTok to pay millions in fines if they fail to delete hate speech from their popular social media platforms.
Austria had attempted to hold platforms accountable for hate speech and other illegal content after passing a law in 2021 requiring tech giants to publish reports as often as every six months detailing content takedowns. Like the European Union's recently adopted Digital Services Act, the Austrian law sought to impose fines—up to $10.69 million, Reuters reported—for failing to tackle illegal or harmful content.
However, soon after Austria tried to enforce the law, Google, Meta, and TikTok—each with EU operations based in Ireland—challenged it in an Austrian court. The tech companies insisted that Austria's law conflicted with an EU law that says that platforms are only subject to laws in EU member states where they're established.
Because there is still plenty of legal uncertainty as to how EU member states can regulate services originating from other member states, the Austrian court asked the Court of Justice of the European Union (CJEU) to weigh in.
Ultimately, the CJEU agreed with tech companies, deciding that the language of Austria's law was too general and abstract, potentially applying to too many platforms without distinction. The court ruling said that allowing Austria to enforce the law risked restricting "the free movement of information society services" between EU member states and undermining "mutual trust" between member states.
The ruling represented a major victory for platforms attempting to comply with ever-stricter user protections recently enforceable in the EU. According to Reuters, CJEU's ruling cannot be appealed. Next, the Austrian court will conclude its legal proceedings, likely sealing the win for platforms and setting an important precedent that could shield platforms from other potential legal attacks as EU regulators continue to crack down on Big Tech.
Meta and TikTok did not immediately respond to Ars' request to comment on the ruling, but a Google spokesperson confirmed that the judgment will inform how Google's trust and safety efforts are managed in the EU.
"We are pleased with today’s decision, which reaffirms the importance of the EU's country of origin principle," Google's spokesperson told Ars. "We will study the judgment and continue to invest in the trust and safety of our users across our platforms."
Hate speech, hate crimes rising
In Austria, officials only started systematically identifying and recording hate crimes in November 2020. The country spent the next year training more than 22,000 police officers, along with prosecutors and judges, teaching them how to support victims of hate crimes. Unsurprisingly, this led to a staggering jump in the number of hate crimes recorded. By the end of 2021, Austria recorded 5,464 hate crimes, compared to 156 in 2020, according to official data reported by the OSCE Office for Democratic Institutions and Human Rights.
The United Nations has historically made a clear connection between hate speech and violence. Likely drawing a similar connection, as part of Austria's nationwide effort to prevent and stop hate crimes, Austria next began cracking down on hate speech online, passing a law in 2021 restricting hate speech on large platforms.
Thursday's ruling suggests that in the EU, at least, online users will only ever have protections as strong as the EU and Irish laws that the world's biggest platforms are subjected to. While platforms consider that a win, the ruling perhaps leaves some member states that might be more strongly motivated to remove hateful content online in a vulnerable position.
Last month, the American Jewish Committee reported that antisemitism is surging globally, raising alarms following an FBI report showing that hate crimes against Jewish people increased by 37 percent in the United States in 2022. That same report noted that anti-LGBTQ+ hate crimes increased by 19 percent. In total, the more than 11,600 hate crimes recorded last year represented the "highest number recorded since the agency began tracking them in 1991," The Hill reported.
In the EU, a public campaign is being launched in the coming days to raise awareness of hate speech and hate crimes amid concerns that rising antisemitism is going largely unreported. EU representatives are also convening November 16–17 to discuss "key success factors in building an effective and comprehensive national response to hate crime."
Online, platforms were not sitting idly by as rising hate speech threatens to further inflame real-world attacks. According to Statista, Facebook set its own record in 2021, removing more than 31 million pieces of hate speech content. So far in 2023, Facebook seems on trend to surpass that record, removing nearly 30 million pieces of hate speech content in the first six months alone.
On Google's YouTube, a transparency report showed that more than 72,000 channels and more than 368,000 videos were removed after being flagged as hateful or abusive during the first six months of 2023. In a separate category, that report also tracks "harmful or dangerous" content, removing more than 43,000 channels and more than 2.5 million videos for violations in the same period.
TikTok seemingly removes much less content, reporting that from April to June 2023, it actioned 3,119 pieces of content considered illegal hate speech and 4,890 pieces of content flagged as harassment or threats.
These are the first numbers reported since the EU began enforcing the Digital Services Act, with all designated "Very Large Online Platforms" and "Very Large Online Search Engines" required to post transparency reports on illegal content by November 6 and then every six months moving forward.
It's not clear yet what actions, if any, the EU might take in response to the ongoing transparency that these reports will provide, but in an October press release, the European Commission promised that the reports, along with other required data access, would help fuel research into effective content moderation online.
The transparency reports "will ensure transparency and accountability over content moderation online—for the benefit of citizens, researchers, and regulators," the Commission wrote. "This will contribute significantly to public scrutiny and accountability."
