Content Moderation, Content Regulation / Censorship, Defamation / Reputation, Digital Rights, Hate Speech, Licensing / Media Regulation, Privacy, Data Protection and Retention
Zöchling v. Austria
In Progress Mixed Outcome
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On December 28, 2016, the Federal Civil and Commercial Court No. 2 of Argentina issued an injunction in which it differentiated orders according to the temporality of the publications, those already made and those to come. The case arose when the plaintiff took legal action against the social network (Twitter) after several users made offensive publications against her after she posted some photographs with her partner hunting animals in South Africa. Regarding the photos and comments made insulting and threatening the plaintiff, in the ruling, the judge ordered Twitter, as a precautionary measure, to remove the content referring to the plaintiff as “murderer”, “whore”, “Jew” , “scum”, “non grata”, “cockroach”, “bitch”, “shit”, accusing her of being a drug addict and seeking her “death”, “suffering”, and “pain”. The Court considered that the consequences for the plaintiff of maintaining the publications outweighed the harm that could be caused by removing them. However, the Court pointed out that restrictions did not apply to future publications, stressing that if the plaintiff identified offensive posts against her, each publication must be analyzed from a standard of proportionality and reasonableness. The Court did not specify who was responsible for monitoring the publications denounced by the plaintiff.
An Argentinean model posted photos on Twitter of herself and her husband hunting animals in South Africa. Consequently, several Twitter users posted insults and death threats against her. The plaintiff stated that she was a “trending topic” in Argentina on the social network for six consecutive days. The plaintiff submitted a complaint to Twitter for allowing users to continue wishing her and her family death and initiated legal action against the social network.
As a result, the model requested an injunction to compel the social network to protect her against the published aggressions. Specifically, she requested the removal of all statements and photomontages referring to her as “murderer”, “whore”, “Jew” (since their religion is used adjectivally by insulting it), “scum”, “non grata”, “cockroach”, “bitch”, “shit”, accusing her of being a drug addict and seeking her “death”, “suffering”, “pain” [par.1], those manifesting hatred and other threats and insults that incited violence, hatred, and discrimination.
The Federal Civil and Commercial Court No. 2 took on the case. After referring to the importance of human dignity and recognizing the need for a timely solution to avoid irreparable harm, it considered it appropriate to declare the precautionary measure. However, it established some restrictions in the definition of the measure to guarantee freedom of expression.Consequently, it ordered Twitter to remove “all the comments and photographic montages” [p. 6] that had offended the model and those she identifies in the future.
The main issue for the Civil Court to analyze was whether the expressions made by the Twitter users against a model were protected by the fundamental right to freedom of expression or if, on the contrary, a precautionary measure was warranted to prevent harm to the rights to good name, honor, and privacy of the plaintiff.
To address this legal issue, the Court referred to the rights to privacy, honor, and good name and indicated that these are directly related to human dignity and are of constitutional rank. The Court considered that the “inclusion of the name, photographs, and comments in publications referring to the plaintiff on Twitter, constituted an improper use of the name and image that its owner has the right to protect [para. 5]. Based on the above, the Court concluded that the precautionary measure requested by the plaintiff was justified, since failure to do so could result in much more serious consequences with respect to her rights than those that could be derived from the application of the measure.
The presiding judge clarified that the measure could not be generalized since it could constitute a violation of the right to freedom of expression; instead, it should be limited to the expressions that could have disproportionately affected the rights of the plaintiff.
Likewise, the Court considered that its decision should be based on the expressions and pages that the affected party determined and that were detrimental to her rights since it would be impossible to require Twitter to carry out a prior examination of the content on the platform due to the magnitude of such task.
The Court pointed out that Twitter allows publications to be associated with the user that makes them and not with the platform, therefore the plaintiff could also direct her claims against the authors.
Finally, the court indicated that Twitter, together with other companies, collaborated in the drafting of a Code of Conduct containing different commitments to fight hate speech on the Internet in Europe. Further, it highlighted that the Code of Conduct recognized that legal hate speech on the Internet affects both the groups or individuals against whom it is directed, as well as those who defend freedom, tolerance and non-discrimination on the networks. The Court noted that such a framework is relevant to Twitter’s compliance with the immediate injunction.
In light of the above, the Court granted the injunction and ordered Twitter to “remove all statements and photo montages that refer to the plaintiff as “murderer”, “whore”, “Jew”, “scum”, “non grata”, “cockroach”, “bitch”, “shit”, those where she was accused of being a drug addict and that wish her “death”, “suffering” or “pain” or that manifest “hatred”. It must also remove those indicated [in the file], and those that the plaintiff may identify in the future” [para. 6].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Federal Civil and Commercial Court No. 2 of Argentina has a mixed outcome regarding the scope of the right to freedom of expression. The ruling recognizes that the generalized application of the injunction to the comments made against the plaintiff would violate the right to freedom of expression. For this reason, the removal measures in the ruling only applied to the offensive comments and photographs the plaintiff detects. Finally, the Court appealed to Twitter’s commitment to protecting people under the Code of Conduct against Hate Speech on social networks.
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