Content Moderation, Content Regulation / Censorship, Hate Speech
Themel v. Facebook Ireland
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The Court of Rome, Italy (Tribunale di Roma), held that Meta, the defendant and Facebook’s parent company, had the right and the duty to delete the Facebook page of CasaPound, an Italian far-right political movement, and individual profiles linked to it, because they contained discriminatory content, hate speech and incited hatred. The case was brought by CasaPound after Meta deactivated its Facebook profiles for violating Facebook’s Community Standards on hate speech and incitement to violence. The Court overruled a previous decision from 2019, which granted a preliminary injunction to CasaPound ordering Meta to reactivate its page on the platform. The Court stated that freedom of expression does not cover hate speech or discriminating content and that Meta must moderate its platforms regarding discriminatory content or hate speech, under both international and national law obligations.
On September 9, 2019, Facebook (now Meta) deactivated the Facebook profiles of the Italian far-right political movement CasaPound and individual profiles linked to it, arguing that they violated Facebook’s Terms of Service and Community Standards on hate speech and incitement to violence.
At the time, Facebook did not provide any notice nor explain its decision. The profiles in question included posts that incited hatred and discrimination for racial, ethnic, national, or religious motives.
After the deactivation, CasaPound requested Facebook reactivate its account page. The political movement claimed it did not violate the social platform’s Terms of Service. Nevertheless, Facebook did not reactivate the profiles.
In September 2019, CasaPound filed a motion for preliminary injunction before the Court of Rome requesting the immediate reinstatement of the deactivated Facebook pages and their content. In December 2019, the Court, through an interlocutory order, granted the preliminary injunction. At that time, the Court of Rome argued that Meta had a systemic role in the effective enjoyment of Art. 49 of the Italian Constitution, which protects the right to political participation, and that Meta could not exclude a movement–that had never been outlawed by public authorities–from the political life of the country.
Thereupon, Facebook lodged a complaint against the preliminary injunction, but the Court of Rome dismissed it in April 2020, thus confirming its decision from December 2019.
After that, CasaPound filed a full-cognizance lawsuit, asking the Court to uphold the contents of its interlocutory order from December 2019.
Judge Silvia Albano delivered the opinion for the Court of Rome. The main issue the Court had to decide was whether Meta (at the time Facebook) could deactivate CasaPound’s profile, and individual profiles linked to it, after they uploaded content that the company considered violated the platform’s Terms of Service and Community Standards on hate speech and incitement to violence.
CasaPound claimed that the deactivation of the pages was a violation of Facebook community standards and therefore of the contract between the parties. It argued that the movement was acting in strict compliance with the law and that it did not “convey violent, racist or discriminatory messages.” [p. 5] Furthermore, the claimant pointed out that Facebook has a special position regarding the exercise of fundamental rights and that therefore “the contractual provisions should be interpreted in light of constitutional principles, protecting the right to express oneself freely, even through harsh expressions and searing tones, where they do not result in an offense.” [p. 6]
For its part, Meta argued that “CasaPound is a neo-fascist movement that openly promotes the principles of fascism and the Italian Social Republic and a culture of hatred, xenophobia and racism.” [p. 6] Hence, for the social media company, CasaPound was an organization that incited hatred (organizzazione che incita all’Odio) under Facebook’s terms of service. Meta also held that it is a private company and, consequently, it was protected by the right to freedom of private economic initiative, as enshrined in Art. 41 of the Italian Constitution and Art. 1322 of the Civil Code. Therefore, it can “choose and filter which content deserves a place within the platform.” [p. 9] In addition, Meta argued that freedom of expression is not an absolute right, on the contrary, it could be restricted or limited under certain circumstances.
The Court held that Meta’s removal of CasaPound’s Facebook page—and that of other individual profiles linked to it—, and its content, was not only lawful but that Meta also had a duty to remove it. According to the Court, the right to freedom of expression does protect hate speech or discrimination, which the Tribunal defined as “an attitude aimed at denying conditions of social equality to the detriment of people who possess specific connotations referable to race, religious orientation, sexual orientation, religious belief, or ethnic origin.” [p. 10]
When outlining the limits to freedom of expression regarding hate speech, or discriminatory messages, the Court referred to the jurisprudence of the European Court of Human Rights in Kaboğlu/Oran v. Turkey, Vejdeland and Others v. Sweden, Le Pen v. France, Feret v. Belgium, Gündüz v. Turkey, and Garaudy v. France, to reaffirm that hate speech is not protected by the right to freedom of expression. It furthermore referred to Delfi AS v. Estonia to conclude that online hate speech and incitement to hate pose a high risk to human rights.
Moreover, the Court said that within the Italian legal framework hate speech was not protected under the right to freedom of thought as it “cannot go so far as to deny the fundamental and inviolable principles of our legal system.” [p. 16]
Regarding Meta’s duty to remove CasaPound’s content, the Court of Rome opined that supranational law requires control of hate speech in social networks, which must be exercised by states within certain limits. The Court then referred, among others, to Art. 14 (3) of the E-Commerce Directive (EU), the CJEU’s Glawischnig-Piesczek ruling, the Digital Services Act, and the “Code of Conduct to combat illegal online hate speech” of the EU. It stressed that Meta itself had signed the Code and that it required from the Company the “rapid evaluation of content (within 24 hours of reporting) and removal of discriminatory and hate speech posts or comments.” [p. 15]
The Court also held that Meta is a private company, even when exercising an activity of undoubted social importance, and that therefore its relationship with CasaPound was governed not only by law but also by the contractual conditions to which CasaPound agreed by registering to Facebook. Since CasaPound, the Court argued, accepted Facebook’s terms of service not to use the platform for the purpose of discriminating, Meta was entitled to delete the infringing content and cease its service.
Thus, The Court rejected CasaPound’s claim and held that Meta had acted lawfully by removing CasaPound’s profile, and other individual profiles linked to it. Hence, the Court rescinded the preliminary injunction issued in December 2019.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Court held that Meta could delete profiles and content that convey discriminatory messages, hate speech, or incite hatred. Although this, a priori, contracts freedom of expression online, strengthening the faculties of social media platforms to moderate content it deems unlawful, the Court abided by international standards on the matter to establish reasonable limits to freedom of expression and to protect other human rights such as non-discrimination and dignity.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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