EU’s top court rules against Austria’s content moderation law

The European Court of Justice sided on Thursday (9 November) with tech giants TikTok, Meta, and Alphabet’s Google against Austrian online content law regulating how platforms should deal with harmful and illegal content.

The EU’s top court ruled that Big Tech companies are not subject to reporting systems for illegal content or reporting obligations imposed by EU member states that go beyond their own jurisdiction.

“We are pleased with today’s decision, which reaffirms the importance of the EU’s country of origin principle. We will study the judgment and continue to invest in the trust and safety of our users across our platforms,” a Google spokesperson told Reuters.

With the win, the tech giants bypassed the Austrian decision to delete hate speech or be fined up to 10 million euros.

The result does not come as a surprise, given that the EU advocate-general, whose advice is often followed by the judges of the EU court, stated in his legal opinion in June that the Austrian law should be deemed inadmissible.

According to the EU advocate-general, the case lacked the necessary case-by-case reference, meaning that the Austrian law inadmissibly restricted the platforms’ freedom to provide services.

“At a time when European users of digital platforms are confronted with hate speech and false reports on a daily basis, it is first of all disappointing that the strict obligations for communication platforms envisaged by Austria were rejected by the Court of Justice,” Anselm Küsters, head of digitalisation and new technologies at the Centre for European Policy (cep), told Euractiv.

In October 2022, the Digital Services Act (DSA) was adopted to set out harmonised rules for a safe and trusted online environment in which fundamental rights are protected.

In September, the EU content regulation started to apply to the largest, ‘systemic’ platforms. As of February 2024, it will apply to all actors in the online ecosystem.

The DSA builds upon the E-Commerce Directive, the EU legislative framework based on the ‘country of origin principle’, meaning online platform services are only subject to the law and supervision of the EU country in which they have their (EU) headquarters.

The 2018’s General Data Protection Regulation and 2022’s Digital Services Act confirmed this disposition.

In a few exceptional cases, to protect important public interests, such as minors, other member states, in this case, Austria, may take measures against a specific service.

With this court ruling, the European Court of Justice reaffirmed that a national law that imposes obligations on a generally defined category of certain services, such as communication platforms, is not subject to this exception.

“The Court of Justice had very good reasons under EU law to deny the applicability of the Austrian measures to Google, Meta and TikTok – which, as is well known, are based in Ireland – above all the integrity of the common internal market, should not be fragmented by national regulations,” Küsters told Euractiv.

[Edited by Luca Bertuzzi/Zoran Radosavljevic]

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