IMPORTANT DUTCH COURT DECISION AGAINST FACEBOOK NETHERLANDS / IRELAND

Facebook

Yesterday the 11th of November 2019, the Amsterdam Court decided in favor of Dutch media boss mr. John de Mol in a case against Facebook Netherlands / Ireland. 
This verdict is important because in my opinion it will set international precedent for other people or companies dealing with fraudulent advertisements on Facebook. 

De Mol started a procedure against Facebook (Netherlands / Ireland) because of fake ads about bitcoins and cryptocurrencies with his picture in it.
He is not the only one. Several other famous Dutch people saw their name and pictures back in fraudulent ads on Facebook, having difficulties getting them removed.

The two most important demands of De Mol are:

1. Facebook needs to take measures to prevent future ads with his name and picture in its relation to bitcoin and cryptocurrency.
2. Facebook needs to give all details about the account behind these fraudulent ads.

In this blog I will discuss the legal arguments in this procedure and why the judge decided in favor of De Mol.

The arguments of Facebook 

First of all, both parties agreed, that these ads were fraudulent.
Secondly, after several summons from De Mol, the ads about him in relation to bitcoins / crypto’s have been removed.

But Facebook stated, that it is technically impossible to prevent future fake ads about De Mol being published on Facebook.

Also Facebook stated, it can not be held accountable for the content on their platform.

The decision of the judge

The facts

Although Facebook stated it is technically not possible to filter ads, the judge considered the following:

– Facebook is an internetplatform, part of ‘social media’ and also owns Instagram.
– Facebook makes primarily profit because of ads.
– Facebook has its own regulation about which ads are (not) allowed.
– Facebook has to control and agree with your ad before it is being published on its platform.
– It is forbidden according to Facebook rules to post ads that are spam, illegal, misleading and violating rights of others (like the ads on De Mol).
– Facebook is making profit from these fraudulent ads.
– At least 1,7 million euro damage was reported by victims of these ads.

The judge decided that at this point Facebook was acting unlawful against De Mol by not doing everything possible to delete this kind of ads.

Dutch court authorized to decide 
Facebook Ireland argued, that the Dutch Court was unauthorized to decide about this argument.
That statement failed, because De Mol is living in The Netherlands, suffering damage here and Dutch people see the ads.
According to article 7 par. 2 of the EU Regulation 1215/2012 in combination with Dutch law (art. 6 Rechtsvordering), the Dutch Court is then authorized to decide.

Dutch law applicable
According to art 4 par. 1 EU regulation 864/2007 Dutch Law is applicable to this matter.
The procedure is about the unlawful act(s) of Facebook against De Mol, he suffers reputation damage here in the Netherlands, and the ads are for Dutch public.

Unlawful act of Facebook against De Mol
These ads are unlawful and causes reputation damage for De Mol, since his name and face is being connected to fraudulent ads.
De Mol took all possible actions to have those ads removed and the public being informed about these ads being fraudulent.

The fact that Facebooks makes it possible for these fraudulent ads to be published on its platform,
not deleting them directly when being informed about the fraudulent character of these ads,
and not taking sufficient matters to prevent those ads from being published,
is a violation of the social care Facebook needs to consider, since De Mol is suffering reputation damage because of those ads.
Facebook is therefor acting unlawful against De Mol.

Facebook cannot hide behind being a ‘safe harbour’ 

The judge also decided, that Facebook’s argument being only a host or intermediary as mentioned in art 14 par. 1 EU regulation 2000/31/EG, and therefor not liable for the damage the ads are causing, is not valid.

1. Not only is that law already 20 years old, so coming from a period of time, the internet was much more simple than it is today.

2. But even if Facebook was just a host or intermediary, Facebook is only not liable if it had no knowledge of the fraudulent content on its platform and acting promptly when being informed about that content.

The judge determines, that

Facebook is, considering the ads on its platform, an active operator:

– Facebook is primarily making profit because of ads;
– Facebook also actively determines which ads are being published or not.

Therefor Facebook is not at all a neutral platform and can not be seen as just a neutral host or intermediary or safe harbour for this kind of ads.

A general obligation to filter content is not allowed, according to Facebook 

Then Facebook also stated, that the judge is not allowed to in general obligate Facebook to filter certain content.
The judge agrees with that, but based on the preamble to the Regulation 2000/31/EG and also the recent decision of the Court of Justice EU of 3 october 2019 (ECLI:EU:C:2019:821, Glawischnig-Piesczek/Facebook Ireland) article 15 par 1 of Regulation 2000/31/EG cannot prevent judges of the Member States to oblige certain internet service providers, between the lines of the international law, to remove certain information.
De Mol has specified to remove and take measures against ads specifically about him in relation to bitcoins and cryptocurrency.
Facebook’s argument on this point therefor also failed.

The argument that Facebook has freedom of speech based on article 10 EVRM, so therefor freedom of publishing information, also failed.
Freedom of speech is being restricted when the content is unlawful or possibly even criminal.
The same counts for the argument that Facebook has freedom of enterprise according to art. 52 EU Handvest.

Filtering the ads is technically impossible according to Facebook 

Also Facebook’s argument that it is technically impossible to filter certain ads, does not convince the judge.
Even if the judge would believe that at this moment it is technically difficult, it is up to Facebook to prove it took all possible measures to prevent violations of others rights to take place on its platform. Facebook needs to take more measures if needed.
The judge finds it remarkable in this matter, that since the procedure of De Mol against Facebook started, Facebook DID manage to have prevent any ads about De Mol being published.
So obviously Facebook does have technical possibilities to filter certain ads and the judge decided that Facebook needs to do that with all possible future ads of De Mol in relation to bitcoin and cryptocurrency at least.

The conclusion is that:

1. Facebook is acting unlawful against De Mol when not removing and keeping removed these fraudulent ads about him.
Facebook has to pay 10.000 euro for every 24 hours they act unlawful.

2. Facebook has to give the information of the account(s) behind these former ads.

Decision Dutch Court against Facebook has international precedent effect

With this decision in hand, people in the EU have more possibilities to fight unlawful, illegal or otherwise violating content on Facebook, at least ads.
The court decision is useful because it is well motivated and all possible national but also EU Regulation is being discussed.

Since several people are suffering from this content in the Netherlands already, there must be a lot of victims in the whole of Europe.
In the meantime, Facebook is making a lot of profit because of these ads.

If we can help you in any way with unlawful, illegal or otherwise damaging content on the internet, please get in touch with us, so we can see if we can help you at Van Essen Advocaten.
You can reach us via email at vanessen@vanessen-advocaten.nl or phone +31 20 308 0085.

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