Sin vs FB (eng)

• online platforms will improve the transparency of their decision-making process in cases of removal of content (in particular so that a banned user knows specifically which content was found inadmissible, exactly which clauses of the Community Standards it violated and why);
• any bans imposed by the platforms will be proportionate to the infringement (while platforms should remove any harmful content, one problematic post should not, in principle, result in the removal of the entire page or account);

• users whose rights have been infringed as a result of private censorship will find it easier to effectively challenge any removal decision which they believe to be wrong or unjustified. We want the online platforms to create an internal appeal mechanism which would permit an effective challenge of their decisions and respect banned users’ right to be heard. In addition, it should be possible to challenge the final decision of an online platform in court.

You will find more information about our long-term goals in the section: What has to change to curb the risks of private censorship?

• A favourable judgment would serve as a helpful precedent for other persons who believe that they have been unfairly banned by an online platform and would make it easier for them to assert their rights in court.
• The lawsuit will hopefully help change the practices of online platforms and usher in much needed legal reform (more information in the section: What needs to change to curb the risks of private censorship?). Using lawsuits to fight for systemic changes is often referred to as “strategic litigation”. Today, there are a number of examples of NGOs using strategic litigation successfully to strengthen human rights protection in the context of new technologies, for example:
  • Digital Rights Ireland has successfully litigated against the EU Data Retention Directive (e.g. phone records), convincing the Court of Justice of the EU to annul the Directive. In many EU countries the judgment sparked legal changes which boosted data protection and the right to privacy in the context of data storage;
  • Max Schrems (today a NOYB activist) filed a complaint against Facebook, which has led to the Court of Justice of the EU annulling the European Commission’s decision on the Safe Harbour scheme. The scheme allowed American companies to tranfer personal data of EU citizens onto their servers in the US without providing the necessary data protection safeguards. In fact, as demonstrated by the information released by Edward Snowden, that data could easily be accessed by American security agencies;
  • In a settlement with the American Civil Liberties Union, Facebook has promised to no longer allow advertisers of loans, job offers and real estate to target their ads in a discriminatory manner (e.g. on the basis of age or race).

• The litigation in SIN vs Facebook complements other initiatives by Panoptykon (advocacy, education, research) which are aimed at promoting responsible and transparent operation of online platforms, including content moderation, for example:
  
  • Letter by NGOs from across the world (including Panoptykon) to Marka Zuckerberg concerning due process in content moderation;
  • Panoptykon's opinion on the proposal of the EU’s Regulation on preventing the dissemination of terrorist content online submited to the Polish Ministry of Digitization;
  • Panoptykon’s complaints against Google and IAB concerning data protection in the context of digital advertising.

The arbitrary banning by Facebook of SIN’s fan pages, accounts and groups has infringed SIN’s personal rights (articles 23-24 of the Polish Civil Code).

What are personal rights?

In the case of legal entities (e.g. companies, organisations, etc.), personal rights are “non-pecuniary assets which allow [an entity] to carry out its statutory operations (Judgment of the Polish Supreme Court from 14 November 1986, case no. IICR 295/86).” To achieve its objectives, public interest organisations such as SIN need to reach the broadest audience possible. In practice this is not feasible without Facebook.

What personal rights of SIN where infringed?

• freedom of speech (the ban imposed by Facebook prevented SIN from freely expressing its opinions, disseminating information and communicating with its audience);
• reputation and recognition (banning SIN on Facebook suggests that the organisation’s activity was harmful and thus undermines SIN’s trustworthiness);

• sense of security (Facebook did not provide any reasons behind its decision to ban SIN; this has left SIN disoriented and uncertain as to its ability to control its key communication channel).

Were Facebook’s actions unlawful?

Yes. Facebook infringed the principles of freedom of speech, due process and the right to an effective remedy. These principles should be respected not only by states, but also by private entities including, as is the case here, global tech giants.

Actions of online platforms cannot undermine users’ fundamental rights. Internal regulations which allow for arbitrary censorship of content are void, and a user’s consent (expressed for example when accepting the terms and conditions) is ineffective. This is especially the case where users are faced with monopolies and have no real choice but to agree to the Terms & Conditions that online platforms impose on them.

• We wanted to support a public interest organisation that uses Facebook to advance its goals.
• The important factor is also the importance of Facebook for SIN’s statutory work, given for example its target audience (predominantly young people). Removing the fan page considerably interfered with SIN’s everyday work. Research confirms that drug users are often “immune” to institutional, top-down education (from experts, in schools). Direct communication and engagement is a more effective way of reaching this group. It also shows Facebook is crucial to the NGO, conducting public health campaigns, especially when it comes to connecting with young people , who tend to be more difficult to reach via traditional media.

SIN is the plaintiff (the suing party) in these proceedings, and Facebook is the defendant (the sued party). As a banned entity, SIN has suffered direct damage and hence it is entitled to sue the perpetrator of the wrongdoing (Facebook).

Panoptykon decided to provide legal support to SIN. We have joined forces with Wardyński and Partners, a law firm, who have agreed to represent SIN in court pro bono.

The case SIN vs Facebook is also a part of our wider campaign aimed at protecting human rights in the online platform environment (check the Why do you believe that suing Facebook is the best way forward? section)

Facebook has over 2 billion users globally, 16 million in Poland alone. It is one of the most powerful companies in the world and yet it has no real competition. In Poland it is the most popular social network, used by roughly 80% of internauts and thus having a greater reach than two of the largest online information services in Poland, Onet and Gazeta.pl, combined. Facebook controls the online world not only because of its financial power and market dominance, but also thanks to the special role it has come to play in our society (as a crucial channel of communications, vital forum of public debate, leading source of information). Consequently, the way it decides to moderate content shapes how we see the world.

It is time for Facebook to finally accept that with great power comes great responsibility. We firmly believe that a company with such an incredible influence over our freedom of expression has to respect it, and we have the right to hold it accountable should it fail.

Of course the issue of private censorship is not limited to Facebook – it affects other online platforms as well, in particular those that, together with Facebook, control an important part of the information circulated online (for example YouTube, Twitter and Google Search). A 2016 study analysed the Terms and Conditions of 50 internet platforms and concluded that as many as 88% of them have the right to ban an account without a warning or any means of challenging such decisions. While our lawsuit concerns Facebook, we hope that it will usher in systemic changes to also regulate other platforms (check the What needs to change to curb the risks of private censorship? section).

• First, we are well aware that even if every person reached by our request actually removed their Facebook accounts, in view of the scale of the company’s operations this would have no practical effect on Facebook. Thus we wanted to do something that would have a real impact.
• Secondly, we believe that Facebook can be used for the common good by organisations, journalists, artists etc. We hope that in the future the market for social networks will be more competitive, allowing everyone to chose the platform with the strongest ethics and best standards of service. Since this is not the case today, we want to do something to help those for whom Facebook is an important tool in their research, charitable or professional activities, and who do not have a real alternative to it because of its dominant position.

• Thirdly, the problem does not only concern Facebook, but also other internet platforms. So even if you are not a Facebook user, you are not safe from private censorship online.

When we filed our lawsuit in May 2019, we knew that Facebook would not be making our case easier. However, we are surprised at how hard the company tries to avoid confronting our core arguments about private censorship on its platform. For instance, Facebook has refused to accept our lawsuit because ‘there are no Polish-speaking employees in its litigation team’. Yes. The company with almost 20 million Polish users claims that it ‘does not understand Polish’.

As a result, the court commissioned the official translation of the case documents and ordered SIN to pay the costs: 8,841.56 PLN* (2000 EUR). We launched a (successful) crowdfunding campaign to raise this amount and continue our struggle in court.

* Still, we believe that everyone has the right to argue their case in their own language in a dispute with global corporations such as Facebook. Thus, we lodged an appeal against the court decision to translate the documents. If our appeal is accepted, we will use the collected funds (and any surplus, should it occur) to cover further case-related costs.

• The Pulitzer-winning photo of a naked girl fleeing napalm bombing during the Vietnam War, known as the Napalm girl. When the 1973 picture by Nick Ut was recently republished by one of the Norwegian newspapers, it was promptly taken down by Facebook for allegedly promoting child nudity. The same happened to an archive photograph of Jewish children who had been stripped and starved by the Nazis during the Second World War, posted by the Anne Frank Centre in Amsterdam. Ironically, the Centre’s post commented on dwindling Holocaust awareness in the US.
• Pictures of the 2017 Marsz Niepodległości (the Independence March – an annual demonstration to mark the Polish Independence Day) taken by Chris Niedenthal. The photos depicted participants of the March: some of them were masked young men wearing symbols of extreme nationalist organizations and holding red burning flares. It seems that Facebook may have concluded that the pictures promoted totalitarian symbols.
• Works of art such asThe Origin of the World by Gustave Courbet or The Descent from the Cross by Peter Paul Rubens , both of which featured female nudes and other naked figures. Facebook found the art problematic because it allegedly “promoted nudity”.

• Pictures of people whose appearance is “unusual”: a picture of a plus size model Tess Holiday, promoting an event organized by an Australian feminist organization or a picture of a severely burnt Swedish man, Lasse Gustavson, a former firefighter who lost his hair, eyebrows and ears in the line of duty. In the case of Holiday’s photo, Facebook apparently concluded that the photo violates its rules on the promotion of a healthy lifestyle. The reasons for removing the picture of Gustavson are unknown.
• The fan page of a popular British satirical magazine VIZ, which has existed since 1979. The magazine, famous for its provocative humour, creates parodies of British comic books and tabloids. It is not clear which exact post led Facebook to ban the page. In Poland YouTube removed one of the episodes of the satirical show “Przy kawie o Sprawie, (loosely translated as “Discussions over coffee”) titled “Is it OK to hit men?”. The episode concerned violence and discrimination against women. It was blocked because it allegedly incited violence.

Many of these take-down cases have caused a public outcry, leading Facebook to admit that it was wrong and restore the removed content. Unfortunately, not every author of a removed post can count on the support of public opinion. We hope our lawsuit will change this and that every user will gain a real possibility to successfully challenge private censorship.

Arbitrary and non-transparent content moderation by online platforms such as Facebook limits our freedom of speech, including the right to information. Even if we find a decision to remove content unfair, wrong or harmful, we have no tools to question it.

This may have a number of negative consequences:

• Quality of information

  A private company decides what a user can see or share. Such a company is driven by its own profits, not by public interest. Therefore, it may tend to promote content that is profitable (e.g. emotive posts which help boost advertisement revenue), rather than content of high quality and informative value (content that is not “click-bait” may be at a greater risk of being banned).

• Informal government pressure

  Governments can restrict access to politically inconvenient content. Instead of following the required procedures (e.g. getting a court order), they can “choose the easy way” and start using the self-regulation mechanisms of the online platforms to achieve the same result without the procedural restrictions. Such incidents have been already reported.

• Pluralism in public debate

  Non-transparent rules of content moderation mean that online platforms, when deciding to remove certain posts or pages, can be influenced by their private beliefs and political opinions, e.g. to favour the right or the left of the political spectrum.

• Discrimination

  Moderation criteria, which are introduced and enforced by online platforms in an arbitrary manner, may result in discrimination of certain communities (e.g. LGBT people or members of religious groups). Minorities are particularly exposed to the threat of the so-called abusive flagging campaigns – coordinated efforts by large groups of their opponents to ban content generated by minorities. These communities already find it difficult to make their voices heard in the public debate. Banning them on Facebook only worsens their marginalization.

• Technical errors

  Tools used by online platforms to moderate content (filters, moderators) are not infallible. Errors can result from incorrect interpretation of the context of the publication (like in the case of the “Napalm girl ” photo - check the Who else has been a victim of private censorship online? section for more examples). Facebook and YouTube are known to have removed publications documenting war crimes in Syria or violence against the Rohingya in Myanmar. Thus, the portal obstructed the work of prosecutors and human rights organizations who could use such materials as evidence against the perpetrators in court proceedings.

• Online platforms should comply with the freedom of expression standards developed by, for example, the European Court of Human Rights on the basis of the European Convention of Human Rights.

  What does this mean?

  • If a particular statement is acceptable in public debate in accordance with the freedom of expression standards, it should be permitted also on online platforms.
  • Even if a particular post or video exceeds the limits of free speech, any “sanctions” imposed by the internet platforms should always be foreseeable and proportionate (e.g. posting one abusive post cannot result in removal of the whole page or account).
  • Freedom of expression is not an absolute right and therefore it can be restricted to prevent abuse. This is why online platforms have the duty to prevent harmful content (e.g. hate speech). Removal of such content is justified and cannot be considered an attack on freedom of speech (you can read more about this topic in the Isn’t the fight against excessive blocking tantamount to allowing more hate speech and other harmful content online? section).
• Online platforms should create internal mechanisms (“due process”) which will ensure that their decisions are made in a transparent and non-arbitrary manner.

  What does this mean?

  • A user whose content was removed should receive an explanation stating the reasons for the decision, including:
    • Identification of the content that it deemed unacceptable;
    • A reasoned statement identifying the clause of the Community Standards that was breached;
    • Information on how the particular piece of content was identified as potentially abusive and how it was assessed (e.g. whether it was notified by another user, or whether it was “caught” by an automatic filter; whether the decision to remove the content was made by a human moderator or by an algorithm);
    • Information concerning what the user can do if he or she disagrees with the platform’s assessment.

• In order to be able to effectively challenge a decision, each user should have the opportunity to present arguments in their “defence”. The user’s appeal should be considered by persons who were not involved in the making of the original decision and it should be carried out within a clearly pre-determined timeframe.

All the moderation procedures mentioned above should be described in a transparent manner and be easily accessible to users (e.g. clearly resulting from the platforms’ terms of service), so that everyone can easily check them and enforce their “rights”.

More about due process on online platforms can be found in the Santa Clara Principles, a set of recommendations from academic researchers and representatives of civil society organizations dealing with digital rights.

• Users should have the possibility to have the final decisions of platforms verified by an independent external body, such as a court of law.

  What does this mean?

  • If a user believes that the removal of his or her content by a platform was wrong and that he or she had no real opportunity to defend himself/herself, he or she should be able to turn to the courts to analyse the matter and to order a revision of the decision (i.e. restoring the removed content or account). This has been recommended by, inter alia, the Council of Europe. It is the court, not a private company, that has the required authority to competently assess whether a particular statement exceeds the limits of free speech. This is why the courts should have the final say in these matters.