Content Moderation, Content Regulation / Censorship, Digital Rights, Political Expression, Integrity And Authenticity, Misinformation, Account Integrity and Authentic Identity
Van Haga v. LinkedIn
Closed Mixed Outcome
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The Amsterdam District Court held that the plaintiff’s right to freedom of expression, as enshrined in Art. 10 of the European Convention on Human Rights (ECHR), had not been breached by YouTube’s removal of a video of a speech given by Plaintiff 3 criticizing government’s measures against coronavirus in the House of Representatives. Forum voor Democratie (FvD), one of the plaintiffs and a political party, uploaded two videos on YouTube criticizing current policies to prevent Covid-19 infections, such as the use of face masks and social distancing, which were later removed by YouTube for violating its Terms of Service and Covid-19 policy. The decision was contested by the plaintiffs, who sued Google Ireland, the company that offers YouTube’s services in the European Economic Area. The plaintiffs argued that the removal of their video violated their right to freedom of expression as it makes it impossible to express criticism of government policy. The Court reasoned that as YouTube’s Covid-19 policy follows the guidelines of health organizations, and various governments, on Covid-19, YouTube acted in a way that is considered proper according to unwritten law in society. The Court pointed out that the plaintiffs had sufficient opportunities to spread their opinions and views via other channels and social media platforms, including YouTube—as their accounts were not banned. Furthermore, the Court concluded that the removal of the video by YouTube, based on their Covid-19 policy, could not be considered unacceptable or unlawful according to standards of reasonableness and fairness.
Forum voor Democratie (FvD) is a political party in the Netherlands, for which Plaintiff 3 is the party leader and the party chairman. In 2021, FvD had five seats in the House of Representatives and three seats in the Senate. FvD has a critical attitude towards the policy and measures issued by the Dutch government regarding the control and prevention of Covid-19 infections.
Forum voor Democratie, Forum for Democracy International (FvD International), and Plaintiff 3 (collectively referred to as FvD c.s.) used their YouTube channels “Forum voor Democratie” and “Forum for Democracy International” to post videos. On March 17, 2021, FvD posted a video on their YouTube channel titled “FvD in Diemen! The Freedom Caravan moves on!” (hereafter Video 2), which shows a FvD campaign rally in the context of the elections for the House of Representatives in 2021. On June 3, 2021, FvD c.s. posted a video on YouTube titled “Plaintiff 3 exposes Rockefeller Foundation in the House of Representatives” (hereafter Video 1), which shows Plaintiff 3 giving a speech in the House of Representatives in a debate concerning measures against Covid-19. In this speech Plaintiff 3 expressed, among other things, his opinions that (1) the Covid-19 pandemic was a “collective psychosis”, (2) Covid-19 was a variation of the flu, (3) facemasks did not work, (4) social distancing of 1,5 meters was ridiculous, (5) ivermectin was a working medicine against Covid-19, and that (6) vaccines were experimental injections.
On June 15, 2021, YouTube removed Video 1 from Forum van Democratie’s YouTube channel. On June 21, 2021, the same video was removed from Forum for Democracy International’s YouTube channel. YouTube explained that it removed the video because it violated its Terms of Service and its Covid-19 policy, which do not allow content that spreads medical misinformation about Covid-19 and that contradicts the information provided by the World Health Organization (WHO) or local health authorities.
On June 29, 2021, YouTube removed Video 2 from Forum voor Democratie’s YouTube channel and gave FvD a warning (first strike), which restricted FvD’s ability to upload, post, or livestream videos via YouTube for seven days.
On July 6, 2021, FvD c.s. objected to the removal of both videos via a letter to Google and requested Google to reinstate the videos and withdraw the first strike. Google Ireland Limited is the company that owns the video platform YouTube and offers the services of YouTube in the European Economic Area.
On July 13, 2021, Google informed FvD c.s. via e-mail that their videos included content that violated YouTube’s Covid-19 policy, justifying the removal of the videos.
In July 2021, plaintiffs Forum voor Democratie (FvD), Forum for Democracy International (FvD International), and Plaintiff 3 brought legal action against Google Ireland Limited (hereafter Google or YouTube) for removing Video 1.
FvD c.s. requested the reinstatement of Video 1 on their YouTube channels and requested that the platform not remove it in the future. In addition, the plaintiffs requested the withdrawal of the “first strike” on FvD’s YouTube account, and that the record of the removal of Video 1 from the accounts of FvD and FvD International be erased. Lastly, FvD c.s. requested that “YouTube refrains from imposing any future restrictions or measures on Forum for Democracy and/or Forum for Democracy International’s YouTube accounts, such as deletions, strikes, suspensions or account termination, without giving them at least 48 hours, or alternatively 24 hours, notice and an opportunity to object to the intended measures in advance,” [para. 3.1] and that YouTube modifies their Terms of Service and Covid-19 policies “in such a way that users will be permitted to post content that deviates from the then prevailing consensus of WHO and (other) national and international governmental institutions or authorities.” [para. 3.1]
The Amsterdam District Court issued a decision on the matter on September 15, 2021.
Judge R.A. Dudok van Heel delivered the judgement for the Amsterdam District Court. The main issue the Court analyzed was whether YouTube’s removal of Video 1 —which included controversial statements about Covid 19— was lawful or if it breached the freedom of expression of the plaintiffs.
Plaintiffs FvD c.s. claimed that the content in Video 1 did not violate YouTube’s Terms of Service, Community Guidelines, or the Covid-19 policy, because the expressions in Video 1 “do not contain content that could lead to significant risk of serious harm.” [para. 3.2] They argued that YouTube’s Covid-19 policy prohibits expressions that are in conflict with the views of the World Health Organization and the RIVM (the local health authority in the Netherlands), which is an “inadmissible interference to the freedom of expression of FvD c.s.,[…]. This effectively silences FvD, making it impossible to criticize controversial government policy.” [para. 3.2] Moreover, FvD c.s. argued that YouTube as a platform is indispensable to bringing critical expressions, such as the ones presented in Video 1, to a broader audience, including the potential electorate of FvD and Plaintiff 3. Furthermore, FvD c.s. argued that under Art. 10 ECHR, their right to freedom of expression outweighed YouTube’s property rights and the protection of public health, as enforced by the strict application of YouTube’s Covid-19 policy. They concluded their argument by claiming that YouTube “violated standards of reasonableness and fairness and acted unlawfully against FvD c.s.” [para. 3.2] by removing Video 1.
For its part, Google argued that YouTube justifiably removed Video 1 based on its Terms of Service and Covid-19 policy. In addition, Google invoked their right to property, and their right to conduct a business. Based on these rights, Google “may in principle set its own rules applicable to its YouTube platform, including the rule that content that violates its Covid policy will be removed.” [para. 4.6]
The Court agreed with Google that the expressions made by Plaintiff 3 in Video 1 conflicted with several provisions of YouTube’s Covid-19 policy. Taking into account the provocative communication style of Plaintiff 3 and his own statements and attitude in public, the views expressed by Plaintiff 3 in Video 1 cannot just be considered figurative speech, as argued by FvD c.s.. Rather, the Court said, they were a clear violation of YouTube’s Covid-19 policy. Therefore, the Court considered that the removal of Video 1 was “in line with the Terms of Service and thus does not violate the agreement between the parties.” [para. 4.3]
Subsequently, the Court analyzed the case in light of Art. 10 of the European Convention on Human Rights (ECHR) —freedom of expression—, and studied whether there were grounds “to consider the removal of Video 1 unacceptable or unlawful according to standards of reasonableness and fairness.” [para. 4.4] Here the Court referred to earlier judgments by the Amsterdam District Court in the cases ECLI:NL:RBAMS:2020:4966 and ECLI:NL:RBAMS:2021:4308, in which the tribunal considered that Article 10 ECHR “may have an effect on private-law relations[…] such as the obligation to act in accordance with the standards of reasonableness and fairness when executing an agreement. The same applies to the estaablished norm contained in article 6:162 of the Dutch Civil Code (tort): an act or omission contrary to “what is proper in social intercourse according to unwritten law is also regarded as a tort.” [para. 4.5]
In their assessment regarding whether these standards were met in this case, the Court considered that the protection of property rights and the right to freedom of enterprise are valid purposes that allow for the restriction of freedom of expression. The Court held that the right to freedom of expression is not without limits and does not mean that Google is obliged to tolerate statements on its platform that violate its Covid-19 policy, such as the ones expressed in Video 1. In this context, the Court explained, “the Covid-19 policy aims to prevent the dissemination of harmful and dangerous medical misinformation on YouTube. Because Google cannot enter into medical discussions itself, it is guided by the scientific consensus as propagated by the WHO and by national organizations such as the RIVM. The Covid policy is based in part on a June 10, 2020, European Union directive aimed at combating misinformation on Covid-19, as well as the European Commission’s October 2018 Code of Practice on combating online disinformation.” [para. 4.6] The Court decided that as Google’s Covid-19 policy “follows the guidelines of such health organizations and various governments, the starting point should be that it does not act unreasonably, but on the contrary, that it acts correctly in a manner ‘befitting unwritten law in society.’” [para. 4.6]
The Court continued its argument by stating that the right to freedom of expression does not imply a right to the use of a forum of choice. While the Court conceded to FvD c.s. that in today’s society the ability to use YouTube as a platform to spread a message is of great importance, it does not mean “that YouTube has a social ‘must-carry’ obligation for critical voices/political expressions.” [para. 4.8] Such an obligation, the Court opined, was also not included in the proposal for the Digital Services Act. In this context, the Court referred to the judgement of the European Court of Human Rights (ECtHR) in the case of Appleby v. U.K, which established that “the bar for government, or court, intervention in the freedom of Internet platforms to moderate the content they publish is high. Only if the obstacles make ‘any effective exercise’ of the freedom of expression impossible, or if ‘the essence of the right has been destroyed,’ is the government (judge) bound to intervene. (…) Only when any effective exercise of freedom of expression is prevented, or when the essence of the right to freedom of expression is destroyed, is there cause to intervene.” [para. 4.8]
The Court decided that in this case the high bar for court intervention was not met, as FvD c.s. has a variety of other channels and platforms to bring their views and opinions to the attention of the public, such as their own website and app. Likewise, the Court noticed that the plaintiffs could also make use of social media platforms such as Facebook, Twitter, Instagram, Telegram, and LinkedIn. In addition, FvD c.s. had the opportunity to use these channels to point the public to Video 1, which is also visible on the video channel of the House of Representatives. Therefore, the Court held, Plaintiff 3 had sufficient fora to express his political points of view, in particular the House of Representatives. The Court also said that FvD c.s. can still use YouTube to bring their critical message to the attention of a broader audience, as they are not banned from YouTube and there are still numerous critical videos visible on their channels.
The Court was not persuaded by the Plaintiffs’ argument that Video 1 was removed by YouTube based on the particular political position of FvD c.s.. The Court found that this suggestion of discrimination was not demonstrated, and considered Google’s explanation —that videos are only removed after they have been flagged by a user as a violation of the Community Guidelines, and that only the content is considered before removal—, to be plausible. This explanation is further supported by the fact that “numerous other critical videos of FvD c.s. and [Plaintiff 3] can still be found on YouTube.” [para. 4.10]
The Court concluded that based on the arguments presented above, “FvD c.s. reliance on freedom of expression cannot lead to the conclusion that the removal of the Video is unacceptable or unlawful according to the standards of reasonableness and fairness. Nor can YouTube be required to take less drastic measures, for instance by not removing the entire Video, but only certain unauthorized fragments, or by placing a banner or disclaimer. As Google explained at the hearing, its policy […]— is simply that a video will be removed (in its entirety) if it contains content that violates the agreement. YouTube has not organized its business operations in such a way that it can place banners and/or cut into videos of its customers and for the time being there is no (legal) ground to force it to change this (certainly not in summary proceedings).” [para. 4.11]
In addition, the Court concluded that there were no legal grounds to order Google to lift the “first strike”. Here the Court did not follow the plaintiffs’ argument by which the chilling effect of these strikes could result in group members of FvD moderating “themselves in the House of Representatives because of this risk,” [para.4.12] as Members of Parliament can, in principle, say anything in the House of Representatives. Therefore, according to the Court, there was no real risk of “deplatforming” Plaintiff 3. Lastly, the Court concluded that there was no “legal ground to prohibit YouTube in advance from imposing future restrictions or measures on FvD without prior notice, or from adjusting its Covid policy. Google has correctly argued that this would be too far-reaching an interference with its property rights, freedom of enterprise, policy-making, and business processes.” [para. 4.13]
The Court denied the requested relief and ordered the plaintiffs to pay the costs of the proceedings.
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