Who will not be blocked by Facebook? SIN wins the first court battle

The District Court in Warsaw (Appellate Division) upheld its interim measures ruling from 2019 in which it temporarily prohibited Facebook from removing fan pages, run by the Polish NGO “SIN”, on Facebook and Instagram, as well as from blocking individual posts. This means that – until the case is decided – SIN’s activists may carry out their drugs-related education on the platform without concerns that they will suddenly lose the possibility to communicate with their audience. The decision is now final. What does it mean on the broader scale?

SIN challenges private censorship on online platforms

The SIN’s (Społeczna Inicjatywa Narkopolityki) case against Facebook, concerning non-transparent and arbitrary removal of drugs-related education content from the organisation’s accounts on Facebook and Instagram in 2018 and 2019, has been going on for over 2 years. The lawsuit against Facebook for the infringement of personal rights was filed in May 2019. SIN argued that the blocking of their content unjustifiably restricted the organisation to disseminate information, express their opinion and communicate with their audience. Concerned about further censorship, SIN was not able to freely carry out their educational activities. Moreover, the act of content removal suggested that the organisation’s activity on the platforms was harmful, thus undermining SIN’s credibility.

Already in June 2019, the District Court in Warsaw issued the first interim measures decision, in which – apart from prohibiting the removal of the existing SIN’s pages for the duration of the trial – it furthermore obliged Facebook to store the organisation’s profiles, fan pages and groups that had been blocked in 2018 and 2019. So, if SIN wins the case eventually, they could be restored along with the entire published content, comments by other users, as well as their followers and people who liked their fan pages. There is more good news. Not only did the Court decide that SIN had sufficiently substantiated their claims to grant the interim measure, but it also confirmed that Polish users could enforce their rights against the tech giant before the Polish law and based on the domestic law. The latter is essential for ensuring the actual possibility to enforce one’s rights in cases against global internet companies.

Facebook appealed against this decision. The company questioned both the merits of the interim measures ruling and the jurisdiction of the Polish court. Its arguments did not convince however the court’s Appellate Division which quashed Facebook’s appeal and fully upheld the original decision. Now, this decision is final and binding for Facebook. Even though the interim measures ruling does not prejudge the final outcome of the case (which is still ongoing), it is an important first step towards holding the social media company accountable for excessive and opaque content removal practices. Moreover, SIN will be now able to catch their breath and continue their social media activity without worrying that they may be blocked again.

Towards curbing platforms’ power

Private censorship is one of the modern-day threats to freedom of speech. Getting blocked on platforms such as Facebook or Instagram, which have become ‘gatekeepers’ to online expression and for which, just as in SIN’s case, there’s no viable alternative, in reality, equals to significant limitation in disseminating information. Tech giants fully unveiled their power over what we can see online in January this year when they blocked Donald Trump’s accounts on the most popular social media platforms. But private censorship affects not only controversial politicians. While some of them have “earned” such a ban by posting content exceeding freedom of expression limits, arbitrary removals by dominant online platforms may also hinder the work of civil society organizations, artists or journalists who increasingly use them in their professional activities. The SIN vs Facebook case shows that private censorship imposed by big tech companies can affect anyone, often without explaining the reasons and the possibility of an effective appeal. Even if it is a result of a human or algorithm mistake, it is often very difficult to undo it.

Will the EU save us?

Politicians are becoming more aware of the problem of arbitrary platforms’ power. The Digital Services Act (DSA), which is currently being discussed in the European Parliament, aims to regulate, inter alia, the new rules for content moderation on platforms, as well as create mechanisms ensuring greater transparency of their decisions and the right to challenge them . The strategic goal of the case, brought against Facebook by SIN, is to contribute to regulations that in the future will make it easier for users to claim their rights in the event of unjustified content removal. The DSA is the EU’s chance to ensure strong human rights safeguards in the process of content moderation. Panoptykon Foundation, takes part in the legislative work, joining the EDRi network’s discussions and advocacy efforts and submitting its proposals for amendments. One of our main goals is to convince EU decision-makers to adopt solutions protecting the freedom of speech online.

Will we have in Poland a “Freedom of Speech Council” instead of independent courts?

The Polish government also had the idea to break the power of internet giants. Unfortunately, the “Freedom of Speech Act”, published by the Minister of Justice this January, guaranteed “freedom” in name only. While independence is a key element of the effective oversight of the platform’s moderation decisions, the proposed Freedom of Speech Council (a body before which users could challenge the removals) did not enjoy any state of independence. Whatever we do to limit the current platforms’ power, we have to make sure it is not simply replaced with political control.

SIN is represented pro bono by Wardyński & Partners law firm.

The article was published on 14 July 2021 by European Digital Rights

Anna Obem, Dorota Głowacka