Content Moderation, Content Regulation / Censorship, Digital Rights
NetChoice v. Attorney General, State of Florida
Closed Mixed Outcome
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The Amsterdam District Court denied the reinstatement of two Facebook pages that were removed by the company as they contained information that violated Facebook’s Covid 19 policy. In 2020 Facebook deleted the pages “No against 1,5 meters” and “Viruswaanzin”, arguing that they breached their Policy on Covid 19 information. Plaintiffs Smart Exit, Viruswaarheid, and Plaintiff 3 (collectively referred to as Smart Exit c.s.) sued Facebook requesting the pages to be reinstated. The Court considered that in this case there was no horizontal direct effect of Article 10 of the European Convention of Human Rights, concluding that as a private party, Facebook has no obligation to ensure that the right to freedom of expression must be exercised on their platform. Regarding the horizontal indirect effect of Article 10 of the European Convention of Human Rights, the Court determined that the removal of the pages was a legitimate restriction of freedom of expression under Art. 10(2) since Facebook created and applied its COVID-19 policy at the request of the European Commission —which asked social media platforms to help prevent the spreading of medical misinformation about COVID-19 in the context of protecting public health. Moreover, the Court held that Facebook’s property rights constitute a second legitimate restriction to Article 10 of the European Convention of Human Rights.
By expanding their Community Guidelines to include policy rules regarding COVID-19 in 2020, Facebook answered the call by the European Commission addressed to social media platforms to help reduce the spreading of misinformation about COVID-19. Starting from January 2020, Facebook Ireland collaborated with organizations such as UNICEF, the World Health Organization (WHO), the European Centre for Disease Control, and the national ministries of public health of all Member States in the European Union, in combatting the dissemination of incorrect information about the COVID-19 virus. Facebook informed their users about the expansion of their Community Guidelines stating their commitment to protecting their users against harmful content related to COVID-19, via moderation and removal of content that could have potentially harmful consequences in real life.
The consequences of violating the Guidelines, as stated by Facebook’s Community Guidelines, depend on both the severity of the violation and the person’s user history.
Plaintiff 1, Smart Exit, is a foundation that represents the interests of entrepreneurs in the tourism, catering, and leisure industries, mainly about the consequences that the COVID-19 pandemic had in these sectors. Plaintiff 2, Viruswaarheid, is a foundation that aims to preserve the democratic constitutional state in which the values of freedom of (personal) development and freedom of expression are central. Plaintiff 3 is the creator of the Facebook Page “Viruswaanzin”. Plaintiffs Smart Exit, Viruswaarheid, and Plaintiff 3 are collectively referred to as Smart Exit c.s.
Expressing their suspicion that the removal of their Facebook page “No against 1,5 meters” was related to Facebook’s COVID-19 policy, on 30 July 2020 plaintiff Smart Exit inquired via a letter addressed to Facebook Netherlands about the reasons for the page’s removal and eventual reinstatement.
Due to the repeated removal of their Facebook page, Smart Exit summoned Facebook Netherlands via letter on 6 August 2020 to reinstate the page.
On 24 September 2020 Facebook Netherlands provided a written statement explaining that Facebook Netherlands is not able to remove or re-instate content as it “(i) is not the entity with which any Facebook users contract for the provision of the Facebook Service; (ii) does not enforce Facebook’s Terms or Community Standards of the Facebook Service; and (iii) does not operate, control, or host content available on the Facebook Service.” [para. 2.9]
According to Smart Exit c.s., Facebook also removed the Facebook page “Viruswaanzin”, created and managed by Plaintiff 3.
On September 15, 2020, Smart Exit c.s. brought legal action against Facebook Netherlands and Facebook Ireland (collectively referred to as Facebook) regarding the removal of their Facebook pages: “No against 1,5 meters” and “Viruswaanzin”, based on the infringement of their right to freedom of expression under Art. 10 of the European Convention on Human Rights (ECHR). Smart Exit c.s. requested the reinstatement of both Facebook pages; that Facebook informs them about the violations it found and provide Smart Exit c.s. with the opportunity to remedy the alleged violations before removing the Facebook pages under their management; and that Facebook revokes their COVID-19 policies to prevent the spreading of misleading medical information about COVID-19.
The Amsterdam District Court issued a decision on the matter on October 13, 2020.
The main issue that the Amsterdam District Court analyzed was whether Facebook violated Smart Exit’s c.s. right to freedom of expression under Art. 10 of the European Convention of Human Rights (ECHR) by removing the Facebook pages “No against 1,5 meters” and “Viruswaarheid” for violating their community standards on COVID-19 information, and whether it should re-instate the Facebook pages mentioned.
Smart Exit c.s. argued that Facebook violated their right to freedom of expression under Art. 10 of the ECHR, and their right to freedom of assembly and of association under Art. 11 of the ECHR, by removing the Facebook pages “No against 1,5 meters” and “Viruswaarheid”. These human rights, Smart Exit c.s. held, outweighed Facebook’s interest in applying its COVID-19 policy. In addition, Smart Exit c.s. said that by removing Facebook pages, the company also failed to fulfill one of its obligations to its users, namely providing a platform for users to express their opinion.
For its part, Facebook contested the jurisdiction of the Dutch court to hear this case and underlined the wrongful subpoena of Facebook Netherlands, as they play no role in this matter. Facebook held that the European Convention on Human Rights does not impose direct obligations on private parties. As such, its decision to remove the pages “No against 1,5 meters” and “Viruswaarheid” was not a violation of Smart Exit’s c.s. right to freedom of expression under Art. 10 of the ECHR.
The Court began its argument by determining that it was possible to assess the claim that the profiles, groups, and or pages under Smart Exit’s management were deleted by Facebook because they contained content that violated Facebook’s COVID-19 policy, even when the precise content that was removed by Facebook remains unclear.
The Court continued its argument by refuting Facebook’s argument regarding the Dutch court’s lack of jurisdiction to hear the case. Contrary to what Facebook maintains, the Dutch court does have jurisdiction to hear this case. Following article 7(2) of the Brussels I Regulation, the Court noted, the competent court vis-à-vis Facebook Ireland is designated on the basis of “the court for the place where the harmful event occurred or may occur.” [para. 4.4] Following art.7(1) of the aforementioned regulation, “the Netherlands is the place where the services are mainly provided by Facebook Ireland (with regard to Smart Exit c.s.), and the place where the actual performance of the agreement takes place. After all, [this matter] concerns (the removal by Facebook of) pages, groups or accounts that had Dutch-language content.” [para. 4.4]
The Court decided that the requests made by the plaintiffs Smart Exit and Viruswaarheid would be denied because both Smart Exit and Viruswaarheid have no interest in the case since, as they later declared, they did not directly have an account on Facebook. They refuted the argument by which Facebook acted unlawfully towards Smart Exit because Facebook harmed Smart Exit’s interests by silencing Smart Exit’s supporters. The Court held that the same applied to Viruswaarheid.
The Court continued their argument by only considering Plaintiff 3’s request for the reinstatement of the Facebook page “Viruswaanzin”.
Regarding Plaintiff 3 the Court held that Facebook Netherlands was wrongly subpoenaed as the Terms of Service indicate that Facebook Ireland is the service provider and that Facebook Netherlands does not moderate the content of the platform. As such the Court rejected all the claims against Facebook Netherlands. The Court then continued to consider the claim made against Facebook Ireland.
Plaintiff 3 argued that through enforcing their COVID-19 policy, his constitutional rights to freedom of expression under Art. 7, freedom of association under Art. 8, and freedom of assembly and demonstration under Art. 9, of the Dutch Constitution were violated. Due to the removal of content contrary to prevailing opinion, he was prevented from conveying his critical position against government policies regarding COVID-19 to a wider audience.
The Court recognized that various fundamental rights were invoked by Plaintiff 3. In this regard, the Court “whether the right to freedom of expression means that anyone, through any medium or platform, should be able to express their opinions without restriction. More specifically, does the right to freedom of expression prevent Facebook from applying its COVID-19 policy?” [para. 4.14]
The Court determined that in this case there was no horizontal direct effect with regard to the right to freedom of expression, as enshrined in Art. 10 of the European Convention of Human Rights. The ECtHR, the Court held, does not attribute horizontal direct effect to the provisions of Art. 10 ECHR, as this article is addressed toward states and not private parties. The Court’s decision not to attribute a horizontal direct effect to Art. 10 of the ECHR was also supported by existing literature addressing the growing influence of powerful non-state actors such as internet service providers, including Facebook, stating that nonetheless there is no horizontal direct effect as the limitation clause of Art. 10 ECHR was not originally written to apply to the right to freedom of expression in horizontal relationships.
As a result, the Court concluded that private parties have no obligation to ensure that the right to freedom of expression can be exercised since this right “does not also entail a right to the forum of his or her choice.” [para. 4.19-20] Plaintiff 3’s preference in using Facebook as a platform to convey his message —due to the opportunity it provided to reach a large audience— is, according to the Court, insufficient grounds to oblige Facebook, without legal basis, “to tolerate every utterance made by users like [Plaintiff 3] on its platform.” [para. 4.20]
Furthermore, the Court established, that it is the State’s responsibility—when freedom of expression is obstructed to such a degree that the exercise of the fundamental right becomes impossible—to intervene and ensure that this right can be exercised. While the removal of the Facebook page “Viruswaarzin” by the social media company might require State intervention, it was not for the Court to intervene in this case.
Moreover, the Court also held that the right to freedom of speech under Art. 10 of the ECHR is not without its limits, and can be restricted to protect the rights of others and public health. Thus, the Court held that Facebook’s private property rights are a legitimate cause to limit the freedom of expression of others on their platform. Furthermore, Facebook’s COVID-19 policy, the Court opined, followed and respected the call for action, addressed to social media platforms by the European Commission and central governments, to help against the dissemination of medical misinformation about COVID-19. The context for this call aimed to protect public health, which under Art.10(2) ECHR is a legitimate reason to limit freedom of expression. As such, by applying their COVID-19 policy, Facebook did not “act contrary to what is socially acceptable. Facebook has a social duty to abide by government guidelines, unless they are evidently incorrect. Which is not the case here.” [para. 4.23]
The Court also determined that Plaintiff 3’s mere reliance on his right to freedom of expression is insufficient to determine whether the removal of the Facebook page “Viruswaanzin” was valid in relation to the limitations to the right to freedom of expression in the context of the protection of public health and the private property rights of Facebook. Additionally, the Court decided that Facebook did not act unreasonably by applying its COVID-19 policy.
Hence, the Amsterdam District Court considered that Facebook’s decision to remove the aforementioned pages was valid.
 R. Nehmelnman & C.W. Noorlander, Horizontale werking van grondrechten, Deventer: Wolters Kluwer 2013, p. 5-6.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Through this decision, the Court contracted expression insofar as it allowed the removal of two Facebook pages. Nonetheless, in doing so, the Court weighed this right against Facebook’s property rights and the protection of public health, thus following international standards regarding valid restrictions to Art. 10 of the ECHR. The Court’s reasoning took into consideration the pressing need to combat misinformation in the context of the COVID-19 pandemic, as the European Commission itself requested from social platforms guidelines to moderate harmful content.
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