Case Summary and Outcome

A Court of Appeal in Ghent, Belgium found that Meta unlawfully restricted the visibility of a Belgian politician’s Facebook page through “covert reach reduction”, more commonly known as shadowbanning. The case arose after the politician, a member of a far-right political party, observed a sharp drop in the organic reach of his posts and approached the Court, arguing that Meta had imposed a shadowban without informing him. The Court concluded that Meta’s actions significantly interfered with his ability to engage politically online and lacked sufficient transparency and redress. Although the Court found the shadowban had ended, it awarded the politician over €27,000 in damages for financial and reputational harm stemming from Meta’s earlier actions and labeling practices.

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Facts

Tom Vandendriessche has been a Belgian Member of the European Parliament for the far-right Vlaams Belang (Flemish Interest) party since May 26, 2019. In 2008, he created a personal account on the social media platform, Facebook, followed by a paid advertising account in 2018 and a political page in 2019. He used these accounts to share political messages and promote content.

In 2021, Facebook removed posts that Vandendriessche had posted on the grounds that the posts were in breach of its Terms of Service (ToS) and Facebook Community Guidelines (FCG). The posts included the use of blackface, reference to Nazi book burning and public urination. It also imposed what it called “temporary restrictions”, also known as “covert reach reduction”. [Interlocutory judgement, 2022, para. 2.6] Vandendriessche described this aspect of Facebook’s conduct as a “shadowban” claiming it reduced his post visibility and hindered political communication. He stated that he had been unable to use his page effectively between February 19 and August 19, 2021. A restriction, or shadowban, is “a measure that reduces the organic reach of content posted on a Facebook page.” [para. 1.1.7.6.3.]

Meta Platforms Ireland Ltd responsible for Facebook’s EU operations confirmed that Vandendriessche’s advertising account was restored on May 24, 2025, and Vandendriessche acknowledged regaining posting access on 19 August, though he argued the shadowban continued. (Interlocutory judgement, 2022, para. 2.7-2.12).

Vandendriessche initiated legal proceedings against Meta, arguing that Meta’s actions violated his right to freedom of expression and discriminated against him on the basis of his political beliefs. He also submitted that Meta violated contract law by going against good faith performance (Article 1134 of the former Belgian Civil Code) and using unfair terms in consumer contracts (Arts. I.8(22), VI.37(1) and VI.83(6) Belgian Code of Economic Law). Vandendriessche also argued that there had been a violation of several provisions of the General Data Protection Regulation (GDPR) regarding unlawful profiling and automated decision-making processes (Arts. 13(2)(f) and 22 GDPR).

The case was first heard by the Court of First Instance in Bruges (case number: 21/1295/A) which, on January 4, 2022, rejected Vandendriessche’s request because it lacked jurisidiction to rule on the matter. (Interlocutory, 2022, para. 1.1.),

Vandendriessche appealed to the Court of Appeal of Ghent (Seventh Chamber). On October 24, 2022, the Court of Appeal issued an interlocutory judgment declaring it was competent to rule on the matter and granting provisional relief, finding the shadowban to be prima facie unlawful and ordering Meta to lift the shadowban (Interlocutory, 2022, para. 5).

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Decision Overview

The President of the 7th Chamber delivered its final merits judgment for the Court of Appeal. The central issue for the Court’s determination was the legality, justification, and transparency of Meta’s moderation practices, with particular emphasis on the alleged shadowban of Vandendriessche’s Facebook page.

Vandendriessch made two claims in respect of the shadowban: that the imposing of a shadowban on his account amounted to a violation of Meta’s duty of good faith in contract law (Article 1134(3) old Belgian Civil Code); and that Meta applies its shadowban policy in a “totally arbitrary, discretionary and discriminatory manner”. [para. 1.1.7.6.4.] He also argued that Meta had infringed the GDPR in three ways: 1. it had profiled him unlawfully according to his political beliefs; 2. it had sanctioned his content based exclusively on automated decision-making; and 3. META’s privacy policy does not comply with the GDPR’s information and transparency requirements. [para. 1.1.6.1.] He maintained that Meta had unlawfully taken down a post involving Zwarte Piet – a Dutch figure in blackface – and argued that there is debate about whether the image of Zwarte Piet should be maintained.

Meta acknowledged that it imposed a shadowban as of 22 February 2021, because of a combination of factors, including the history of FCG violations, the number of penalties against the Facebook Page, and the severity of the violations.

The Court examined eight distinct questions, each addressing a separate legal issue.

First, the Court confirmed that its decision was based primarily on Belgian contract law (the duty of good faith under Article 1134(3) of the former Belgian Civil Code), consumer protection laws on unfair terms (Arts. I.8(22), VI.37(1) and VI.83(6) Belgian Code of Economic Law) and Articles 13 and 22 of the GDPR, especially regarding automated decision making processes.

Second, the Court examined Vandendriesche’s agreement to the ToS, as Meta had provided screenshots of Vandendriessche’s consent history, demonstrating that he had agreed to the ToS and Terms of Use for both Facebook and Instagram – specifically, the versions dated April 19, 2018. These dated versions would be used to determine any potential unlawful violations by the applicant.

Third, the Court assessed the horizontal effect of fundamental rights and examined freedom of expression in private contracts. Referencing a Dutch case, the Court held that although the right to freedom of expression is protected by, among others, Article 10 of the European Convention of Human Rights (ECHR), it does not have direct horizontal effect, which means it “does not directly oblige private parties to ensure that this right can be exercised”. [para. 1.1.4.1.] Accordingly, although Meta’s action cannot directly be tested against the legality, legitimacy and proportionality test of Article 10 ECHR, “the provisions of the ECHR may have an indirect effect on private law relationships”. [para. 1.1.4.2.] The Court noted that this is especially relevant when the Court needs to interpret open norms in private law, such as the principle of good faith in contract law. It added that the determination of this standard may “be coloured by the provisions of Article 10 ECHR”, but Vandendriessche carries the burden to prove how Meta’s removal of his content should be considered “unacceptable” in light of Article 10 of the ECHR. [para. 1.1.4.2]

Fourth, in assessing the legitimacy of Meta’s ToS sanctions the Court examined whether the terms contained any unfair terms, as prohibited by Belgian Consumer Contract Law. Article 3.2 of the ToS gives Facebook the authority to delete or block content that violates the ToS and Article 4.2 allows Facebook to block accounts or take away the publication rights of accounts that have repeatedly violated the ToS. The Court held that this clause also gives Meta “the right to limit the organic reach of certain messages. After all, those who are allowed the more are also allowed the lesser (‘qui peut le plus, peut le moins’)”. [para. 1.1.5.5] Accordingly, the Court found that both clauses were sufficiently “clear and understandable” and could not be considered unfair terms to the detriment of the consumer.

Fifth, the Court examined Vandendriessche’s argument that Meta had violated the GDPR. The Court did not find any evidence that Meta’s actions were based on Vandendriessche’s political beliefs, “but rather on the violations he is alleged to have committed of the Facebook Terms of Service and the Facebook Community Guidelines”. [para. 1.1.6.3] It did mention the GDPR’s general prohibition on exclusive automated decision-making processes and its exceptions as determined by Article 22 of the GDPR but the Court held that, since the decision concerns data that reflects the data subject’s political beliefs, it could not have happened by exclusive automated decision-making processes. Meta had needed to prove that their decision-making process had human intervention, but could only prove this in respect of one intervention, not all. The Court focussed on the shadowban sanction and found this intervention as “significantly affecting” Vandendriessche as “for a politician, the Facebook platform is a very important medium for spreading his political message”. [para. 1.1.6.3] The Court held that Meta had failed to prove that it was possible for Vandendriessche to appeal his shadowban and that the Facebook ToS do not mention any appeal mechanisms to challenge the shadowban sanction. Accordingly, the Court held that Meta’s decision to shadowban Vandendriessche was unlawful and a violation of Article 22(3) of the GDPR. The Court also held that Meta’s Privacy Statement violated Article 13(2) of the GDPR since it only mentions “automated processing” of data, but fails to mention that “automated decision-making” also takes place. [para 1.1.6.4] The Court found that Meta’s practice of automated decision-making is “not adequately disclosed in [their] privacy notice” and that consequently all their automated decisions taken against Vandendriessche (including the shadowban, the removal of his content and the placement of warning labels on his Facebook Page) were unlawful. [para 1.1.6.5]

The sixth question the Court examined was Vandendriessche’s alleged infringements of the ToS and whether Meta’s actions – the removal of posts, the shadowban and the imposition of warning labels – were justified.

In respect of the removal of posts, the Court found that three posts were clearly violations of the FCG: a picture of “Zwarte Piet” in the form of blackface, which was removed because it violated Article 3.12 of the FCG that explicitly states that “caricatures of coloured people in the form of blackface” are strictly forbidden [para. 1.1.7.2.]; a series of posts on Nazi book burning, which was forbidden according to Article I.2 of the FCG, which prohibits praising dangerous hate organisations or giving presence to them without providing context. [para. 1.1.7.4.3.]; and a post showing a person urinating or defecating in a public location, which violated Article 2.9 of the FCG (i.e., the depiction of private persons in a humiliating manner) [para. 1.1.7.5.2.]. In respect of the Zwarte Piet post, the Court emphasized Vandendriessche’s “full right” to participate in this debate, but that although there is no direct horizontal application of the right to freedom of expression, there was no violation of the right since he was free to express his views on Facebook without using blackface images (para. 1.1.7.2.6.).

The Court held that, although these posts were violations of the FCG, their removal was still “unjustified because it was done in disregard of Article 13(2) f GDPR” (in respect of the unlawfulness of the automated decision-making processes). [para. 1.1.7.3.; para. 1.1.7.4.6.; para. 1.1.7.5.4.] The Court dismissed Vandendriessche’s request for an order that Meta reinstate the deleted posts as it accepted Meta’s argument that this would be technically impossible and added that it did not see “topicality value” of three-year old messages. [para. 1.1.7.5.5.]

However, the Court held that one post – a screenshot of a tweet in which a terrorist claimed responsibility for the beheading of an individual where Vandendriessche added his own commentary, condemning the attack – did not violate the FCG. Article I.2 of the FCG states that it is forbidden to show content that praises, supports or represents terrorist attacks. The Court held that as Vandendriessche added context to the image in which he clearly condemned the attack it did not violate the FCG. Facebook had appeared to admit its mistake in an email where it confirmed the sharing of terroristic content is permitted as long as the attack is being condemned and had lifted the removal on October 19, 2020. The Court found that the removal of Vandendriessche’s post and the wrongful blocking of his publication rights for one month based on this post was unlawful.

In respect of the shadowban (the term the Court used for consistency), the Court found that Meta did “not act in accordance with the principle of good faith performance of contracts (art. 1134.3e paragraph old BW) when imposing the shadow ban”. [para. 1.1.7.6.5.] It noted that the shadowban was imposed more than six months after the posting of the last piece of content which would have led to the justification of this penalty; if Vandendriessche’s post was considered a severe violation of the FCG, Meta should have acted against his account immediately. The Court called the shadowban a “sweeping measure”, since it reduced Vandendriessche’s average reach from over 50,000 to under 3,000 (less than 5% of the range), and that even though Meta described it as a “temporary measure”, the shadowban was imposed for ten months (from February to December 2021). [para. 1.1.7.6.5]

The Court found that Meta did not provide sufficient procedural safeguards when imposing a shadowban as it should have first given Vandendriessche a warning that it intended to impose a shadowban on his account, that it should exercise this penalty with due care (which calls for proper motivation of the decision) and that Meta did not offer their users any means to appeal a shadowban decision. The Court referred to the Dutch case of Van Haga v. LinkedIn and the German Case on Facebook’s Terms of Service in this section. The Court accepted that Meta did provide additional explanations to Vandendriessche’s lawyer afterwards, but found that this did not suffice as Meta should have given these explanations of its own volition.

The Court was unpersuaded by Meta’s “strike system” which Vandendriessche had described as opaque and overly discretionary but Meta argued was transparent. The Court held that if Meta is to impose such a system it must be transparent on when a user is given a “strike”, how many strikes will lead to a penalty and how long a penalty will last. The Court also criticized the reach of Meta’s penalties as, despite the shadowban, Vandendriessche was able to proclaim his political views through the promotion of his content as advertisement through his paid advertising account. The Court commented that if Meta had genuinely wanted to enforce their Community Guidelines, it should have also ensured that reach through Vandendriessche’s advertising account was also limited but that it opted to only enforce sanctions when it would not suffer financially. It noted that this would not violate the notice and takedown regime as established by the e-Commerce Directive (implemented in Articles XII.19-XII.20 BCEL).

On the question of whether the shadowban was discriminatory, the Court found that Meta’s actions were based on violations of the FCG and ToS and that none of the clauses in these documents prohibit or limit the expression of political opinions (para. 1.1.7.6.7.).

The final measure taken by Meta against Vandendriessche’s Facebook Page was the placement of various warning labels and the Court agreed with Meta that these warnings can be justified when a Facebook Page has violated Community Guidelines. However, the Court found that Meta had no contractual basis allowing it to apply such a sanction and so it had acted unlawfully and breached their contract by using this penalty.

The seventh issue the Court assessed was whether Vandendriessche was entitled to damages. He had argued that, because of his shadowban, he had needed to reach his followers through his advertisement page and the Court agreed that without the shadow ban, Vandendriessche could have reached his followers through non-paid posts. Accordingly, it awarded Vandendriessche €26,779.03 in economic damages through increased advertising costs incurred by Vandendriessche during the period of the shadowban (February 18, 2021 until December 31, 2021). The Court also awarded €500 in reputational damages for an unjustified warning label placed on his page.

The eighth question the Court examined was Vandendriessche’s argument that the shadowban was still ongoing: he submitted that in 2022 and 2023, his average reach had gone from 4 000 to 20 000 – 25 000, which was still much lower than the 80 000 before the original shadowban. Meta had disagreed, explaining that “ranking is influenced by a combination of dynamic, complex and nuanced factors” and that it implemented a “platform-wide change” in 2021 that had reduced the distribution of societal content in general. [para. 1.1.9.3.] The Court stated that it lacked the necessary expertise in the complex workings of Facebook’s platform to determine with sufficient certainty whether the reduced average reach of posts on Vandendriessche’s page was due to a shadowban and that only an expert investigation, by a social media specialist and an IT expert, could provide a definitive answer. It added that it would only mandate such a costly and time-consuming measure if Vandendriessche had made it sufficiently plausible that the shadowban was still in place and found that Vandendriessche had not sufficiently demonstrated that his Facebook page has remained subject to a shadowban from January 2022 to the present. Accordingly, the Court declined to order an expert investigation.

Accordingly, the Court partially granted Vandendriesshe’s motion, stating that “both parties are partly in the right and partly in the wrong”. [para. 2.1] It ordered Meta to bear three-fourths of the legal costs, with Vandendriessche responsible for the remaining one-fourth.

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