Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
On Appeal Mixed Outcome
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The Court of Rome ruled that Facebook must reactivate the account and restore the pages of the Italian neo-fascist party CasaPound. The action was brought after Facebook deactivated the party’s account as well as the profile of the page’s administrator without providing any notice or explanation. Facebook argued that the removal of CasaPound’s pages was legitimate on the grounds that they included content which constituted hate speech and incitement to violence, in violation of Facebook’s Community Standards. The Court reasoned that due to Facebook’s dominance as a social media platform and its stated mission to uphold freedom of expression, the deactivation of CasaPound’s page violated its rights as a political party to participate in public debate and “contribute by democratic means to national policy” under article 49 of the Constitution. The Court further stated that Facebook was bound to abide by Italian law, which limited its discretion in its contractual relationship with its users, until violations had been proved. Therefore, the Court granted the request and ordered Facebook to pay costs as well as a penalty of €800 for each day the account remained inactive following the order. Facebook has appealed.
September 9 2019, Facebook Ireland (‘the respondent’ or ‘Facebook’) deactivated the account page of the far-right political party and organization CasaPound Italia (‘the applicant’ or ‘CasaPound’) together with the pages of representatives and supporters of the association without providing any notice or explanation for their decision. At that time, CasaPound had approximately 250,000 Facebook followers.
CasaPound Italia declares its members to be “the fascists of the new millennium,” and the association to be the legitimate heir of historical Italian fascism. It is known for its anti-immigration, anti-semitic and racist stance.
The day after the accounts were deactivated, CasaPound submitted a request to Facebook to immediately reactivate its account page. CasaPound argued that they had not violated Facebook’s Terms of Service and claimed the action discriminated against their organisation.
Facebook argued that the removal of CasaPound’s main page along with the administrator’s profile were legitimate on the grounds that they included content which constituted hate speech and incitement to violence, in violation of their Terms of Service and Community Standards. Facebook bans “dangerous individuals or organizations, such as hate groups and their leaders, which “proclaim a violent mission or are engaged in violence”. Facebook defines hate organizations as “any association of three or more people that is organized under a name, sign, or symbol and that has an ideology, statements, or physical actions that attack individuals based on characteristics, including race, religious affiliation, nationality, ethnicity, gender, sex, sexual orientation, serious disease or disability.” It made its determination about CasaPound not only based on their online content, but also on their offline activities which include utilizing Nazi salutes at protests and incidents of physical assaults on minorities and liberal activists.
The applicants sought a preliminary injunction asking, inter alia, to order Facebook to immediately reactivate the Facebook page of CasaPound, as well as to restore the content of the Facebook page and personal profile of Davide di Stefano, its administrator.
The main issue before the Court of Rome was whether Facebook, by deactivating CasaPound’s pages, had infringed the constitutionally protect right of political parties to freely participate in political debate.
The Court began by noting Facebook’s special role as a service provider for over 2 billion people, facilitating information sharing and public discussion, and recalled the stated goal of its Community Standards to support freedom of expression.
The Court then observed that Facebook’s Community Standards govern and regulate the relationship between its users and the platform. When registering with the service, each user is contractually obligated to accept and respect the Community Standards, which establish “permitted and non-permitted behaviours.” It then quoted the terms from the Community Standards, which state that in case of a violation, the severity of the sanctions depends on the “severity of the violation and the user’s background on the platform.” Generally, first offenses result in a warning and only repeat offenses would result in account suspension or permanent disabling of accounts. Based on the terms, the Court found that the case could succeed on its merits.
Moreover, due to the significance of the aforementioned services, the Court found that Facebook plays a crucial role in upholding constitutional principles, including political pluralism as established in Art. 49 of the Italian Constitution which reads: “All citizens have the right to freely form political parties in order to contribute by democratic means to national policy.” It follows that users excluded by Facebook would effectively be limited from Italian political debate. The Court noted that almost all Italian political figures use social media in general, and Facebook in particular, to convey political messages to their constituents.
Accordingly, the relationship between Facebook and its users was not comparable to the relationship between any two private subjects as the social network holds a special position. This position entails that, when entering into agreements with users, Facebook is bound to abide by Italian law and uphold national constitutional principles until a violation of the Terms of Service by the user has been proved. According to the Court of Rome, the required respect for Italian constitutional and legal principles limits the discretion of Facebook in its contractual relationship with its users.
The Court rejected Facebook’s argument that the content had to be removed to prevent the dissemination of hate speech which could incite violence. The Court noted that in the present case, Facebook based its decision in part on violence perpetrated by CasaPound that had no established causal link to the impugned online content.
Due to Facebook’s dominance as a social media platform, the exclusion of the applicants from Facebook was held to be a violation of their right to political pluralism as well as a restriction of their right to association. The Court stressed that CasaPound has played an active, and legitimate, role in the Italian political landscape since 2009 and that the restriction could result in political damage to the association.
As such, the Court of Rome upheld the applicant’s request and ordered Facebook to immediately reactivate the CasaPound account and restore the content of their page and personal profile of Davide Di Stefano, as administrator of the page. Moreover, the Court ordered Facebook to pay costs as well as a penalty of € 800 for each day of violation following the judicial order.
Facebook has appealed the order.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands freedom of expression in-so-far as The Court of Rome ordered the reactivation of CasaPound’s Facebook pages. However, as this case was a preliminary procedure, the Court did not rule on the allegations of hate speech or incitement made by Facebook.
The Court required Facebook to abide by Article 49 of the Italian Constitution which protects pluralism of political parties, but omitted any reference to Article 3 which states “all citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.” If balanced with Article 3 rights, the takedown could be considered a legitimate restriction to protect groups targeted by the impugned posts.
The Constitution further states, that “[i]t shall be forbidden to reorganise, under any form whatsoever, the dissolved Fascist party,” yet CasaPound is allowed to participate in politics despite claiming to be the heir to Mussolini’s party.
By way of comparison, a 2018 ruling from a German regional court found that Facebook was within its rights to delete a comment deemed to be hate speech and de-activate the account for a period of 30 days. The Court reasoned that Facebook’s Community Standards were transparent, adequately took into consideration the right to freedom of expression and that, even though polemic expressions are protected under article 5.1 of Germany’s Basic Law, Facebook (as a private party) did not have to grant all of its users the right to freedom of expression to the fullest extent. Alternately, a different regional court in Germany ruled that Facebook’s deletion of a comment posted by a right-wing politician was an infringement of Facebook’s contractual relationship with its users on the grounds that the post in question did not constitute hate speech and that Facebook had to consider its users right to freedom of expression under Germany’s Basic Law when applying its own guidelines.
The ruling also raises the question of different standards between online and traditional media. For instance, there is Italian media legislation which “prohibits all content that contains ‘incitement to hatred in any way motivated by’ or that ‘instigate intolerant behaviours based on” differences of race, sex, religion, or nationality.’”
Facebook has appealed the preliminary injunction and if the case proceeds, a future court may rule on its merits.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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