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Why Facebook’s art censorship has landed it in court

26 February 2016

Users of Facebook are probably aware that the site’s terms of service have proved controversial. Its ‘rights and responsibilities’ section sets out that Facebook endeavours to keep itself ‘safe’, but requests that users undertake not to post content which is ‘hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence’. This is coupled with a broader reminder to refrain from doing ‘anything unlawful, misleading, malicious, or discriminatory’. Unsurprisingly, and not at all unusual in commercial contracts, Facebook’s terms include a jurisdiction clause that specifies California as the location for the resolution of subsequent disputes. Those using the site, and therefore acceding to the terms, are deemed to have formed an agreement between Facebook Inc. (for those in the US or Canada), or Facebook Ireland Limited for all other users.

In 2014, an image of a mother breastfeeding her premature baby was reported by a Facebook user as ‘offensive’, which resulted in the image being removed ‘in error’ by the company. The removal was initially justified because it depicted nudity (not allowed under the terms and lumped in with the same designation as ‘sexually suggestive content’). Facebook subsequently clarified its position, stating that breastfeeding is ‘natural and beautiful’ and that the ‘vast majority of these photos are compliant with our policies’. The revised position does not, however, prevent users reporting images which are still liable for censorship if they are considered ‘sexually suggestive’ by user reviewers.

It is not surprising then that an image which is often cited in discussions relating to art and obscenity has found itself at the centre of a censorship debate in relation to Facebook’s terms. A French teacher, Frédéric Durand-Baissas alleges that Facebook unfairly suspended his account, in breach of his right to freedom of expression, after he posted an image of L’Origine du Monde by Gustave Courbet. Durand-Baissas filed a claim in a Paris court, seeking the reactivation of his account as well as €20,000 in damages. Facebook opposed the claim citing the jurisdiction clause: the French court was not the correct forum to hear the dispute, on proper construction of the contract, the correct forum was California. The French court disagreed, allowing the claim to be heard in full (scheduled for 21 May) as the jurisdiction clause was ‘excessive’ and French consumer rights law could be applicable regardless of Durand-Baissas having agreed to Facebook’s terms in return for using the site for free. Commentators have praised this as setting new legal precedent in relation to the liability of key international internet players. Whether or not this is correct will depend on the outcome of the hearing in May. That is, if the case is not settled out of court in the meantime.