Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
Closed Mixed Outcome
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A Court of First Instance in Italy held that Facebook was entitled to suspend the accounts of a neo-fascist party and its members. After their accounts were suspended due to racist, fascist and xenophobic comments, the Facebook users approached the Court, arguing that Facebook’s actions violated their right to freedom of expression. The Court held that the suspensions were in accordance with Facebook’s Terms of Service and the Terms themselves were lawful, and that hate speech is not protected by the right to freedom of expression and Facebook is both permitted and required to take action against hate speech on its platform.
In September 2019, Facebook removed the profiles of users who were identified as administrators of several pages connected, by different means, to the party Forza Nuova. Forza Nuova describes itself as a neo-fascist organization, expressly repudiating the values of anti-fascism and which regularly makes racist, xenophobic and antisemitic statements. Facebook classified Forza Nuova as a “hate organization” in breach of its contractual conditions and Community Standards after identifying various posts which were openly fascist and racist and explicitly inciting violence. Examples of the posts on Forza Nuova’s page included one requesting the exclusion of Roma people from social services, a picture showing a banner on the Colosseum stating “Mussolini per mille anni” (“Mussolini for one thousand years”) on the anniversary of Benito Mussolini’s death, and a drawing of a woman chased by three men, with the sentence “RAPEUFEES NOT WELCOME”. On a personal account of an individual associated with Forza Nuova, there was a post stating “VIVA IL FASCISMO. BENITO MUSSOLINI PRESENTE” (“Long live fascism. Benito Mussolini is present”)
As a result, Facebook terminated its contract with those users who had administrated the pages of Forza Nuova or of groups affiliated to it (for example, Lotta Studentesca; Sindacato Nazionale Lavoratori Italiani – Sinlai), some users who had managing roles within the party and some electoral candidates for Forza Nuova. Facebook disabled their accounts and removed the pages they administrated.
The individual users brought an action before the Court of First Instance in Rome, arguing that the removal of the pages was illegal and in violation of their right to freedom of expression. They sought the reactivation of their profiles and the pages they administrated. The users brought the matter under article 700 of the Italian Civil Procedural Code which provides for an emergency and precautionary proceeding whenever there is the well-grounded fear that by the time the ordinary proceeding is concluded, they would have suffered an irreparable harm.
The central issue for the Court’s determination was whether Facebook – a private company – was permitted to limit the right to freedom of expression of its users who engaged in hate speech. The Court noted that the case concerns the right of a political group to access a privately-owned social network to share information on its activity – and is therefore not concerned with the general right to freedom of expression of groups or individuals.
The Court conducted an extensive overview of national and international legislation and case law. It observed that international law, when assessing the limits to freedom of expression, does not allow for any protection of hate speeches or discrimination. The Court referred to the Universal Declaration of Human Rights – which provides for equal protection against discrimination, – article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination – which condemns racial hatred and discrimination – and article 20.2 of the International Covenant on Civil and Political Rights – which requires the prohibition of advocacy of hatred.
In its analysis of European Union law, the Court highlighted that dignity is a fundamental and inviolable value. It added that European law provides for the right to freedom of expression, under article 10 of the Charter of Fundamental Rights, and prohibits any form of discrimination, under article 21 of the Charter and articles 9, 10 and 19 of the Treaty on the Functioning of the European Union. In addition, the Convention of Human Rights prohibits discrimination (under article 14) and protects freedom of expression – subject to restrictions (in article 10). Article 10 of the Convention states: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others (…)”.
The Court commented that the jurisprudence of the European Court of Human Rights in respect of hate speech established that while freedom of expression in a democratic society cannot be restricted when it is concerned with the promotion of fundamental values and human rights, it is legitimate and necessary for a State to intervene and punish hate speech which limits freedom and equality. It also noted that the jurisprudence stresses incitement to acts of violence is not necessary for speech to be classified as hate speech, as all that is required is the expression of racist or discriminatory ideas.
The Court mentioned initiatives and laws adopted by EU institutions in respect of hate speech. The Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law requires member states to punish “(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin (…)”. The EU Code of Conduct on Countering Illegal Hate Speech Online was adopted in 2016 to prevent the proliferation of hate speech online and has since been signed by Facebook and other social media companies. The Code states that companies share a collective responsibility in promoting and facilitating freedom of expression throughout the online world and tackling illegal speech online. The Code requires platforms to review (within 24 hours) the notification of illegal hate speech and remove discriminatory or hateful posts and comments. Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market requires service providers to act to prevent or stop illegal activities, and that “in order to benefit from a limitation of liability, the provider of an information society service (…) upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned”.
The Court also referred to the Court of Justice of the European Union case of Glawischnig-Piesczek v Facebook Ireland Limited Case C-18/18 which had held that Facebook and other providers do not have a general obligation “to monitor the information which they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity” (paras 31 and ff.), but that the exemption from liability in Directive 2000/31 “is without prejudice to the power of the national courts or administrative authorities to require the host provider concerned to terminate or prevent an infringement, including by removing the illegal information or by disabling access to it” [para. 24].
In assessing Italian law, the Court explained that, in the Italian system, the right to freedom of expression can be restricted in different ways when the need to repress discrimination comes into play and that hate speech does not fall within the scope of freedom of expression. Articles 2 and 3 of the Italian Constitution prescribe that freedom of expression cannot infringe inviolable and fundamental human rights, such as equality. Article 604-bis of the Italian Criminal Code (originally Article 3 of Mancino Law, No. 654, 1975) prohibits propaganda grounded in supremacism or racial hate and the incitement of violent acts on the basis of ethnicity, race and religion, and any organization, association, movement or group which has, within its aims, discrimination or violence on the basis of race, ethnicity, nationality or religion. In a case in 2008, Corte di Cassazione (Supreme Court), Section III, No. 37581 07/05/2008, the Supreme Court had held that the Mancino Law did not violate the constitutional protection of freedom of expression in article 21 as the right is not “absolute” but must be coordinated with other equally relevant constitutional values such as equality. Scelba Law, No. 645, 1952 prohibits the reconstitution of the fascist party, in any form and punishes individual and collective behaviors such as the apologia (i.e., the defense) of fascism. The Court noted that jurisprudential and academic consensus was that if hate speech happens via mass media or the internet, the conduct is dangerous per se to the democratic system and hence criminally relevant and such behavior cannot, under any circumstance, be justified by the right to freedom of expression.
The Court set out the law which addresses discrimination in Italy. Article 43 of the Legislative Decree, No. 286, 1998 defines discrimination as any behavior that, directly or indirectly, entails a differentiation, exclusion, restriction or preference on the basis of race, color, ancestry, national or ethnic origin, religion or any behavior that has the aim or the effect to destroy or impair the recognition, enjoyment or exercise, on equal terms, of human rights and fundamental principles in the political, economic, social and cultural sphere and in any other sector of the public life. In addition, Article 2 of the Legislative Decree, No. 215/2003 provides that the “principle of equal treatment” means that there must be no direct or indirect discrimination based on race or ethnic origin.
The Court concluded that the domestic and international law established that human dignity and the prohibition of any discrimination are the main values that justify restricting freedom of expression, and that there are obligations on States and social networks to control and prevent hate speech.
In applying the law to the present case, the Court emphasized that Facebook is a private entity, whose relationship with its users is regulated by contractual conditions (Terms of Service) to which the individual user adheres. These terms stipulate that users may not use the social network for illegal, deceptive, malicious or discriminatory purposes and may not publish posts which violate third party’s rights or are in breach of the existing law. Article 1 of the Terms states that “People will only build community on Facebook if they feel safe. We employ dedicated teams around the world and develop advanced technical systems to detect misuse of our Products, harmful conduct towards others, and situations where we may be able to help support or protect our community. If we learn of content or conduct like this, we will take appropriate action – for example, offering help, removing content, blocking access to certain features, disabling an account, or contacting law enforcement”. Article 3.2 provides that users may not use Facebook’s products “to do or share anything: that breaches these Terms, our Community Standards and other terms and policies that apply to your use of Facebook; that is unlawful, misleading, discriminatory or fraudulent; that infringes or breaches someone else’s rights, including their intellectual property rights”. The terms entitle Facebook to “suspend or permanently disable” access to the user’s account and “may also suspend or disable” it if the user “repeatedly infringe[s] other people’s intellectual property rights or where we are required to do so for legal reasons.”
The Court noted that Facebook’s Community Standards, under the section in the Terms titled “Violence and Incitement” explicitly establishes that the social network will “remove language that incites or facilitates serious violence” and that the section, “Dangerous Individuals and Organizations”, states that “we do not allow any organizations or individuals that proclaim a violent mission or are engaged in violence to have a presence on Facebook”. Facebook defines “hate organizations” as associations “of 3 or more people that (…) [are] organized under a name, sign, or symbol and that (…) [have] 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”.
In assessing whether the users did act in breach of Facebook’s Terms, the Court examined the principles and ideas inspiring Forza Nuova’s political agenda, and the party’s activity. It noted that Forza Nuova’s website demands the abrogation of the Mancino and Scelba Laws which it describes as liberticidal and as the expression of a “dominant culture tyrannically preventing thoughts and actions in defense of our history, cultural and religious heritage”. The website also includes numerous express references to the positive role fascism played before the liberation from the Nazi-fascist regime in 1945. In addition, fascist symbols have been frequently used in flyers – for example, a 2019 flyer showing a picture of Benito Mussolini – and other forms of communication. The group organizes protests on Liberation Day, where banners stating “Mai più antifascismo!” (“Anti-fascism: Never Again!”) and similar messages have been displayed. Finally, Forza Nuova’s propaganda openly and aggressively targets the members of the LGBTQ+ community (protesting civil unions between gay couples or accusing its members of pedophilia), Roma people, and migrants (accusing them of raping Italian women and of perpetrating different crimes).
The Court found that Facebook’s decision to suspend its services to the users in question was justified as Forza Nuova was classified as a “hate organization” whose propaganda is prohibited by Facebook and by the law and the users’ conduct breached Facebook’s Terms. In particular, the users had violated the rules that “symbols representing hate organizations cannot be shared on the platform without context that condemns or neutrally discusses the content”; content praising hate organizations or “any acts committed by them” is not allowed on the platform; and “coordination of support” for hate organizations is not allowed on the platform. The Court also held that Facebook’s Community Standards and Terms of Service are compliant with the European Union Code of Conduct to which the social network has adhered. Accordingly, the Court held that Facebook has both the right to terminate the contract, and the duty to remove the content according to what has been established by the European Court of Justice, Directive 2000/31/EC and the Code of Conduct the social network has signed.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the decision contracts the expression of the Facebook users in question, the Court explicitly stated that hate speech is not protected speech and that private companies are required to take action to prevent the proliferation of hate speech online.
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