For some years now, Americans have been demanding that Internet companies deal with online ugliness—from misogyny, racism, anti-Semitism, and other forms of abuse to disinformation, propaganda, and terrorist content. The public fever is justifiably high. As The New York Times breathlessly editorialized about Facebook and fake news shortly after the election of U.S. President Donald Trump, “Surely its programmers can train the software to spot bogus stories and outwit the people producing this garbage.” And yet, while Congress hauls company lawyers up to Capitol Hill hearings and Facebook, Twitter, YouTube, and other technology companies struggle to address public concerns, U.S. legislation to restrict online content seems as unlikely today—for constitutional and political reasons—as it did before November 2016 (bracketing such things as child exploitation and imminent threats of violence, subjects strictly regulated offline and on).
Meanwhile, as Americans collectively fret over an Internet gone bad, Europe regulates, unconstrained by the legislative paralysis or solicitousness toward corporate America present in Washington. At every level—executive, legislative and judicial, union and state—Europeans are moving to impose restrictions on the expression that Internet companies can permit on their platforms. Although these moves reflect legitimate concerns about the abuse of online space, many risk interfering with fundamental rights to freedom of expression. What’s more, the possibility of this trend spreading beyond Europe is high.
A WAVE OF CONTENT RESTRICTIONS
European regulation of online speech has roots in a continental willingness to protect vulnerable groups against “speech harms.” (Think, for instance, restrictions on Holocaust denial.) But more recent actions show European courts and legislators pushing companies to act as speech regulators themselves. Consider, for example, the European Court of Justice’s 2014 “right to be forgotten” decision. In a case involving a Spanish citizen’s claim against Google Spain, the Court held that search engines must, upon request, ensure that irrelevant information about a person—that is, information “no longer necessary in the light of the purposes for which it was
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