Case Summary and Outcome

In the case of Stichting Smart Exit, Stichting Viruswaarheid and Plaintiff sub 3 v. Facebook, the District Court of Amsterdam (‘the Court’) held that Facebook was under no obligation to re-upload content it had removed for violating the platform’s Covid-19 misinformation policy. Referring to a case law of the European Court of Human Rights (‘ECtHR’), the Court affirmed that the right to freedom of expression does not imply a right to a forum of one’s choice, nor does it oblige a private party (Facebook) to allow another private party (the Plaintiffs) to express its opinions using the first party’s property. The Court further found that Facebook’s Covid-19 policy was in line with the European Commission’s call to tackle Covid-19 misinformation. Facebook could not therefore be said to have acted ‘unreasonably’ or ‘unlawfully’ while implementing its policy.

Facts

The Plaintiffs, a foundation called Stichting Smart Exit, a foundation called Stichting Viruswaarheid (Virus Truth) and an individual affiliated with the second foundation (‘Plaintiff sub 3’), had been the administrators of some Facebook profiles, groups and pages, including the page “Nee tegen 1.5 meter” (No against 1.5 meter) and the page “Viruswaanzin” (Virus Madness). The Defendants, Facebook Ireland Limited and Facebook Netherlands B.V., operate the global social media platform Facebook in the Netherlands and worldwide. In July and August 2020, Facebook had removed certain content produced by the Plaintiffs for violating its Covid-19 misinformation policy. Facebook does not allow content related to Covid-19 that contributes to the risk of real-world harm. Soon after the removal, the Plaintiffs lodged summary proceedings with the Amsterdam District Court against Facebook, seeking a judicial order to reinstate two Facebook pages and to de-activate the Covid-19 policy.

Decision Overview

The main issue before the Court was whether Facebook, by removing the content from its platform, had committed a breach of contract and/or had acted unlawfully against the Plaintiffs (within the meaning of article 6:162 of the Dutch Civil Code) and was therefore under an obligation to reinstate the content.

Importantly, the two foundations did not have their own Facebook accounts. The directors of Stichting Smart Exit and Stichting Viruswaarheid had created accounts, but not in their capacities as directors of the foundations. Although the foundations had been using the accounts, they could not be considered contracting parties. The Court thus decided to only assess the legal claims as submitted by Plaintiff sub 3.

Furthermore, it had not become fully clear from the court documents nor the court hearing which content had actually been removed. The writ of summons referred to two Facebook pages, but the attorney’s pleading notes (also) mentioned a Facebook group and a Facebook profile. The Court left open the issue of which exact content had been removed and instead focused on the general question of whether Facebook was allowed to remove content it deemed contradictory to its Covid-19 policy.

Plaintiff sub 3 claimed that Facebook’s Covid-19 policy infringed his right to freedom of expression. As a critic of the Dutch government’s response to the pandemic, Plaintiff sub 3 wanted to bring his views to the attention of the public. By removing content contrary to the prevailing opinion as communicated by the government and the World Health Organization (‘WHO’), Facebook obstructed substantive public debate. Moreover, by not offering a platform for people to express their views, Facebook, according to Plaintiff sub 3, committed a breach of contract.

Facebook, on the other hand, argued that it could not be held liable for an alleged violation of the right to freedom of expression as enjoyed by the foundations and/or Plaintiff sub 3, because the European Convention on Human Rights (‘ECHR’) does not impose direct obligations on private parties such as Facebook.

The Court explicitly considered that there is no (legal) consensus for attributing direct horizontal effect to fundamental rights in private relationships; private parties (the Plaintiffs) cannot therefore directly invoke the provisions of the ECHR against another private party (Facebook). According to the Court, “this means that the right to freedom of expression does not directly oblige private parties to safeguard the effective exercise of this right.” More specifically, “the right to freedom of expression does not impose an obligation on a private party to allow another private party to express its opinions using the first party’s property.”

Referring to the Appleby judgment of the ECtHR, the Court affirmed that Article 10 of the ECHR “does not imply a forum of one’s choice.” The mere fact that Plaintiff sub 3 prefers to use Facebook to disseminate his views because of the platform’s huge audiences, is “insufficient to force Facebook without a legal basis to tolerate each and every expression made by users on its platform.”

Referring to literature and case law, the Court highlighted that when freedom of expression is hindered in a way that “any effective exercise” thereof is made impossible, or when it could be said that “the essence of the right has been destroyed,” a positive obligation could arise for the State – and not for private parties – to intervene and guarantee that the right to freedom of expression can be exercised properly. Although the summary proceedings did not deal with the need for such State intervention, the Court provisionally considered State intervention unnecessary in this regard. It noted that Plaintiff sub 3 could bring his views to the attention of the public through other channels, for example through the press or his own website. The fact that these channels did not reach the same audiences as Facebook was, in the words of the Court, “not a decisive factor” given the high bar set by the ECtHR for State intervention.

At the same time, the Court observed that ECHR provisions may have an indirect effect on private relationships, namely through the interpretation of open standards under national private law in conformity with fundamental rights. In this regard, the Court referred to an earlier decision of the District Court of Amsterdam in the case of Café Weltschmerz v. YouTube. An important open standard under Dutch law is the duty to (in the performance of a contract) “act in accordance with standards of reasonableness and fairness” (article 6:2 Dutch Civil Code). Dutch law further prescribes that private parties must “act in accordance with unwritten law pertaining to proper social conduct” (article 6:162 Dutch Civil Code). In the assessment of Facebook’s behavior under these national standards, the right to freedom of expression is a factor to be taken into consideration, besides other potential factors.

Regarding freedom of expression, the Court considered that expressions enjoy less protection when other legitimate interests are affected. Facebook’s right to property, for example, allows Facebook to set certain ‘house rules’ and could thus constitute a legitimate restriction on the right to freedom of expression. The interest of protection of public health could legitimize an interference as well. Facebook’s Covid-19 policy explicitly responded to governments’ calls to online platforms to combat Covid-19 misinformation that could create confusion and distrust and undermine an effective public health response.

As regards the other factors to be taken into account, the Court held that having a Covid-19 policy in place did not seem to violate the open standard of ‘proper social conduct,’ considering that platforms have a societal duty to comply with governmental guidelines “unless these are manifestly incorrect.” The Court did not think the European and Dutch governmental guidelines were manifestly incorrect, especially since the scientific and societal debate about adequate Covid-19 measures was still ongoing.

The Court also found that Facebook’s actual implementation of its Covid-19 policy – the removal of certain content – did not seem to violate any open standards. It was up to the Plaintiffs to argue why the removal of the specific content was unacceptable; the mere argument that it constituted an infringement on freedom of expression (censorship) was insufficient. Again, the Court stressed that it is primarily for the State to guarantee freedom of expression and not for the private sector, and that the bar for State intervention is set very high. Furthermore, it noted that Facebook’s right to property and the governmental guidelines regarding public health both limited the scope of protection.

According to the Court, Facebook could not be said to have acted ‘unreasonably’ by implementing its policy in line with the European Commission’s call to combat Covid-19 misinformation. If the Court were to hold otherwise, Facebook would be put in an “impossible position” of having to fulfil a societal duty to comply with the European Commission’s requests on the one hand, and to respond to users’ demands for unlimited freedom of expression on the other.

Lastly, the Court considered that the fact that Facebook is a powerful company reaching huge audiences on a daily basis, is insufficient to deviate from the principle that it is not for the private sector but for the State to safeguard people’s right to freedom of expression. Under the given circumstances, the Court did not believe that any positive State obligations could have been exercised.

In conclusion, the Court held that Facebook was under no legal obligation to re-upload the removed content onto its platform.