SIN vs Facebook

The story of SIN is a good example of the threats posed by private censorship online. In the SIN vs Facebook case we fight for the court to recognize that non-transparent and arbitrary actions of the social network led to an unjustified infringement of rights of that organisation. We hope that as a result of the case:

• 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;
• blocked users will find it easier to effectively challenge any removal decision which they believe to be wrong or unjustified. We want the online platforms to justify their decisions, and to create an internal appeal mechanism which would permit an effective challenge of their decisions and respect banned users’ right to be heard.

More information about our long-term goals in the What has to change to curb the risks of private censorship? section.

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 (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”. Examples of NGOs successfully using strategic litigation to strengthen human rights protection in the context of new technologies, include the following cases:

• Digital Rights Ireland convinced the Court of Justice of the European Union to annul the EU Data Retention Directive (e.g. phone records). 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, the founder of NOYB – the European Center for Digital Rights, filed a complaint against Facebook. It led the Court of Justice of the European Union to annul the European Commission’s decision on the Safe Harbour scheme. The scheme allowed American companies to transfer 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 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 SIN vs Facebook litigation complements other Panoptykon’s advocacy, education, and research projects, aimed at promoting responsible and transparent operation of online platforms (including the scope of content moderation). For example:

• we advocated for regulations curbing private censorship to be included in the Digital Services Act;
• we joined NGOs from accross the world in signing a letter to Mark Zuckerberg concerning due process in content moderation;
• we drafted an opinion on the proposal of the EU’s Regulation on preventing the dissemination of terrorist content online (submitted to the Polish Ministry of Digital Agenda);
• we filed 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).

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.

In our lawsuit we claim that the following personal rights of SIN were infringed:

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

We claim that Facebook’s actions were unlawful: the company 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. Online platforms actions 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.

The case in its first instance was reviewed by the Warsaw District Court (Poland). Meta filed an appeal before the Appeal Court in Warsaw.

SIN (Civil Society Drug Policy Initiative) is a Polish NGO created in 2011. It focuses on drug abuse education and harm reduction, i.e. efforts aimed at reducing the negative consequences of substance abuse. SIN works primarily in clubs and at music festivals as well as online, where it provides assistance and raises awareness of the risks of particularly dangerous drugs.

Harm reduction focuses on protection of the health and life of drug users. According to this approach, while the use of drugs should be discouraged, those who cannot be dissuaded from drug abuse, should be encouraged to do so in a manner least harmful to themselves and those around them.

Over the years, harm reduction has helped save countless lives around the globe. The approach is recommended by the United Nations, the European Union (EU drugs strategy 2013-2020), the National Bureau for Drug Prevention, the Red Cross, Médecins du Monde, and hundreds of other institutions and organizations that work in the field of drug abuse prevention.

More information at SIN website

First of all, we wanted to support a public interest organisation that uses Facebook to advance its goals.

Secondly, we taken into consideration the importance of Facebook for SIN’s statutory work (given for example its target audience, who is 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 NGOs 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). Panoptykon provides 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 3 billion users globally (in about 100 countries), and 20 million in Poland alone. When we launched the case, it was by far the most popular social network in Poland, used by roughly 80% of internet users and 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, and a leading source of information. Consequently, the way it decides to moderate content shapes how we see the world and other people.

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, X, TikTok, 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 lead to systemic changes to also regulate other platforms (check the What needs to change to curb the risks of private censorship? section).

Quitting Facebook may work out for individuals, but from an NGO’s perspective, it is not a really effective strategy. Why?

• 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 it. 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 were surprised at how hard the company tried to avoid confronting our core arguments and delayed the proceedings instead. For instance, Facebook refused to accept our lawsuit because “there are no Polish-speaking employees in its litigation team”. You got it right: 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* (2,000 EUR). We launched a (successful) crowdfunding campaign to raise this amount to be able to continue our struggle in court. Thank you all who supported the campaign!

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

They were plenty:

• The Pulitzer-winning photo of a naked girl fleeing napalm bombing during the Vietnam War, known as the Napalm girl. The 1973 picture by Nick Ut was republished by one of the Norwegian newspapers – and 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.

We want to put an end to dominant online platforms arbitrarily dictating the limits of freedom of expression without any accountability for their decisions. What needs to change to achieve this?

• 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 (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.

  This would allow each user not only to dispute the objections raised by a platform, but also to avoid similar situations in the future.

• 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 time frame.

• 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 their content by a platform was wrong and that they had no real opportunity to defend themselves, they 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, i.a., 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.

In 2023 a new regulation came into force: Digital Services Act (DSA) obliged internet platforms to justify their moderation decisions, and to create effective internal procedures to appeal. Did Meta oblige? That shall verify the European Commission, which, according to the DSA, supervises platforms’ compliance to the new act.

We should not forget thought that even the best internal procedures are just a part of the solution to private censorship. In the SIN vs Facebook case we advocate for every user’s right to seek resolution from an external body such as a court of law (see more in the What needs to change to curb the risks of private censorship? section). According to the DSA, also a brand new type of institution shall be created for the purpose.

The judgment of the District Court in Warsaw in our case already proved that Meta can be sued in Poland and disputed over private censorship on internet platforms may be resolved in court.

Towards the end of 2018, the Polish government announced that it had signed a Memorandum of Understanding with Facebook. In accordance with the MoU, Polish users would have had an additional right to challenge the portal’s decision to remove content through a designated “point of contact”. The “point of contact” was closed on 25 August 2023.

While operating, it still failed to resolve the problem of private censorship at a systemic level. Why? The procedure was afflicted with the very flaws that lay at the root of the litigation in SIN vs Facebook. In particular, the portal continued to hold arbitrary power to decide what should be taken down, and it continued to exercise this power based on unclear criteria and without sufficient safeguards protecting users from abuse. Equally, the MoU did not impose any reporting duties on Facebook (e.g. to publish regular reports on how the point of contact operates) and it did not establish any independent, external control over the portal’s decisions.

We explain what reforms are necessary to effectively boost users’ rights in What needs to change to curb the risks of private censorship? section.

• The Santa Clara Principles – a set of recommendations on “fair procedures” of moderation of content on online platforms. The Principles were established by academics and representatives of NGOs working in the field of digital rights.
• Side-stepping rights: Regulating speech by contract – policy brief by ARTICLE 19 which examines the compliance of dominant social media platforms – Facebook, Twitter, and YouTube with international freedom of expression standards.
• Panoptykon Foundation articles
  • Moderacja Facebooka bez cenzury
  • Drogi Faceboooku, nie blokuj mnie bez powodu
  • Facebook obiecuje większą przejrzystość w blokowaniu treści
  • Kto czyści dla nas Internet (i dlaczego nadal jest tak brudno)?
  • Zablokowali ci konto na Facebooku? Zobacz, co możesz zrobić
• Panoptykon 4.0 podcast
  • Kto rządzi w sieci. Podcast z Wojciechem Orlińskim, dziennikarzem oraz autorem książki Internet. Czas się bać.
  • Facebook – czas się zmienić. Rozmowa z Jakubem Turowskim – szefem działu Facebooka ds. Polityk Publicznych w Polsce i krajach bałtyckich.
  • Jak pozwać Facebooka? Rozmowa z Piotrem Golędzinowskim i Łukaszem Laskiem
  • Czy pozwy SIN i Konfederacji zmienią praktykę Facebooka? Rozmowa z Maciejem Gawrońskim i Dorotą Głowacką