Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
On Appeal Mixed Outcome
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Against this preliminary injunction, Facebook said it was a private company operating for profit protected by art. 41 of the Constitution. It complained that the order had erroneously attributed a special nature to the contract between the social network and the user, when it was instead an ordinary contract under civil law. In the absence of any legal basis, according to Facebook, it is not possible to attribute public service obligations to private sector players such as the protection of freedom of association and expression. Likewise, Facebook argued that it is not required to ensure special protection to some users such as organizations engaged in political activities by virtue of their role in the political debate. Further, Facebook complained that the Court had not taken into account the general activity of CasaPound aimed at inciting hate and violence and resembling fascist posturing even outside Facebook.
CasaPound argued that its conduct should be evaluated exclusively within the framework of the contractual relationship and, consequently any evaluation of conduct unrelated to the use of the Facebook service should be precluded. It argued, however, that Facebook’s claims were unfounded and unproven. CasaPound submitted that it proposed an update of historical fascism that exclusively values its social policies, and that it has publicly condemned racial laws. It also recalled that freedom of expression protected by art. 21 of the Italian Constitution provides that CasaPound’s adherence to fascist ideology would be relevant only if the limits provided by criminal provisions were exceeded.
Facebook asked the Court of Rome to dismiss the preliminary injunction.
The main issue for the Court was whether CasaPound had breached Facebook’s contractual terms in circumstances where CasaPound supporters had routinely been involved in incidents of violence and racism.
The Court firstly found that the relationship between Facebook and CasaPound was an ordinary contract under civil law, specifically, an atypical contract in which the operator provides free of charge content-sharing services. In this case, users are required to comply with certain conditions established in the agreement with the social network and, as such, whether or not termination by the service provider is valid must be determined in accordance with the rules of contract law. The Court said that the relationship was subject to the limits ordinarily recognized for private sector players, namely, the general clauses of public order, morality, good faith and the prohibition of abuse of the law, all of which must be interpreted according to constitutional principles.
The Court stressed that these general principles are critical in the execution and interpretation of contracts, as per arts. 1175, 1366 and 1375 of the Italian Civil Code. They are relevant both in terms of identifying contractual obligations and balancing the conflicting interests of the parties and they allow the judge to intervene, even to amend or supplement, the content of the contract. Further, the Court said that, private enterprises cannot limit the exercise of users’ constitutional rights by punishing their exercise under the contract or in the absence of objective justifications pursuant to contract.
The Court went on to say that Facebook’s position was groundless. While Facebook can rely on its economic freedom provided by art. 41 of the Italian Constitution, users can express their ideas and opinions according to art. 21 of the Italian Constitution and CasaPound also enjoys the right to association pursuant to art. 18 of the Italian Constitution. The Court pointed out that the rights to freedom of expression and association are superior in the constitutional hierarchy and that contractual discipline cannot justify the termination of the contract because of the manifestations of thought or allow the exclusion of association. The limits connected to the respect for the freedom of thought and association are general and do not refer to special categories of users, nor do they imply the need for any additional check by Facebook.
According to the Court, it is not possible to attribute to private actors, such as Facebook, contractual powers substantially affecting the freedom of expression and association, so as to exceed the limits that the legal system has imposed by criminal law. Besides, CasaPound cannot be considered an illicit association in the Italian legal system: the Court said that Facebook had unduly terminated the contractual relationship on the basis of an act of legitimate freedom of thought, protected by art. 21 of the Italian Constitution and in breach of the principle of free association protected by art. 18. The relevant Law no. 645/1952 prohibits reconstitution 0f the fascist party but not neo-fascist associations in themselves except to the extent their activities aim to reconstitute the Fascist Party of WWII. Otherwise there would be an undue limitation of the principle of free expression of thought and free association.
In this way the Court found that the exclusion of CasaPound from Facebook’s platform was unjustified. It dismissed Facebook’s appeal ordering it to immediately reactivate CasaPound’s page and account and to pay legal fees of 12,000 euros.
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 rejected the complaints of Facebook, thus, confirming reinstatement of the social media accounts. Nonetheless, this decision increases the uncertainty about platforms’ obligations in online content moderation. The horizontal application of fundamental rights is a safeguard against abuse of powers in private relationships – in this case extending responsibility for the protection of expression and association to Facebook. At the same time, it is worth considering that, without a clear legal framework for content moderation, platforms would be exposed to legal uncertainty and the chilling effect. These actors would be encouraged to increase the monitoring activities of online content to mitigate their risk of being held responsible, thus increasingly challenging the system of exemption of liability established by the e-Commerce Directive which is based on the passive role of online intermediaries.
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