Commentary / World

Court case challenges Facebook bans

by Leonid Bershidsky

Bloomberg

Facebook is often criticized for not doing enough to police its platform for hate speech. But the opposite has also been a problem: Mark Zuckerberg’s company uses rather vague “community standards” as the basis for decision to remove users and posts. It doesn’t feel compelled to explain exactly how it applies them, either. Now, a Polish court may decide it should.

When Facebook banned Alex Jones, Milo Yiannopoulos, Louis Farrakhan, Laura Loomer and others recently, all it said was that “the process for evaluating potential violators is extensive and it is what led us to our decision.” The prominent right-wingers with huge audiences on the Facebook-owned platforms didn’t, in other words, get much in the way of explanation.

Those banned from Facebook and Instagram earlier this month might want to take a look at Poland, where a local NGO is suing Facebook for removing its page. The Polish nonprofit, called the Civil Society Drug Policy Initiative and known by the Polish abbreviation SIN for short, filed suit against Facebook’s European arm in the Warsaw District Court last week. At least in Europe, the case may help set up more transparent procedures for banning content and its creators from social networks.

The group specializes in “harm reduction,” an approach to fixing drug-related social problems in part by removing the stigma from drug use and respecting users’ rights. It may be controversially soft on drug users, but the approach has been backed by the United Nations and influential private donors and is by no means illegal.

SIN says Facebook shut down its page last year without explaining what rules it had broken; SIN used the social network’s appeal procedure but the ban was upheld, again without a clear explanation — just like in the case of U.S. right-wingers who were kicked off. SIN activists suspect Facebook’s human moderators, or perhaps an algorithm, erroneously decided that the page, with 16,000 subscribers, encouraged drug use.

The group is represented pro bono by a prominent Warsaw law firm and aided by another NGO, Panoptykon, which describes itself as a civil society watchdog over all kinds of regulators. SIN wants the page reinstated because it says it was important as a hotline for drug users the organization is trying to help as well as an information channel. Panoptykon’s goals are broader: It’s trying to set a precedent and have the practice it describes as “private censorship” explicitly regulated.

Poland is a country with a right-wing, nationalist government, and the ruling Law and Justice Party has long grumbled about U.S.-based social networks’ banning practices. Like those in the United States who were banned, its members see a liberal bias in the platforms’ policies. In 2017, the country’s Digital Affairs Ministry drafted a bill that would make the social networks liable for “over-removal” of content, but the bill never made it to parliament, derailed by a ministry reorganization. Panoptykon’s approach, however, is distinct from the right-wing criticism: It’s trying to stress the nonpartisan nature of the “private censorship” issue by backing the drug policy nonprofit’s case.

Panoptykon lawyer Dorota Glowacka argues that though social media firms are, in principle, free to kick people and organizations off their networks on the basis of their terms of service, Facebook, because of its global dominance and huge number of users, doesn’t enjoy full discretion in this area. It should, she says, “observe human rights standards” — and its freedom to withhold access to its private forum should be limited because users have so few viable alternatives.

This line of attack skirts an issue long debated by Facebook and its critics —whether the company is a tech platform for users’ free expression or a publisher with its own editorial policy. Publicly, Facebook says it’s a tech platform, which is supposed to absolve it of responsibility for what appears on it. But in a U.S. court case last year, its lawyers argued that it was a publisher and its decisions on what not to publish should be protected for that reason.

I’d be in favor of treating Facebook and its peers as publishers, holding them liable for content and getting them to pay news organizations for providing material for debate on their platforms. But Panoptykon’s approach — treating the massive social networks as public utilities — also has its advantages: If upheld by the courts, first in Poland and then on the European Union level, it would force the platforms to leave all lawful speech alone and stop taking down posts, profiles and pages simply because they feel like it, because a government objects to the content or because an interest group has put pressure on them with a flagging campaign.

SIN and Panoptykon want the platforms to issue reasoned statements explaining why they removed a certain post or account and who was responsible for the decision — a human or an algorithm. Platforms should only remove posts for violating specific rules, not entire accounts. And users, according to Panoptykon, should have recourse to courts when they want to appeal the networks’ decisions. These demands are largely in line with the Santa Clara Principles, developed by a team of ethics and tech experts and backed by the American Civil Liberties Union and the Electronic Frontier Foundation.

Trying, perhaps somewhat belatedly, to regulate the major tech platforms is turning into a national sport in many countries, especially European ones. So many conflicting demands are being made on them that it’s easy to see why they resist the efforts with all the legal firepower they’ve got.

It’s difficult to comply with demands that they, on the one hand, curb hate speech, political manipulation and the propaganda of violence — and, on the other hand, that they act as a free speech utility for which a takedown or a ban is a rare measure of last resort. But in a sense, it’s good to have the regulatory competition and all the different court cases in which the platforms are attacked from every possible angle.

Out of this chaos of adversity, clear definitions for the platforms’ functions, power, rights and obligations should emerge. The Polish case is one to watch for those who believe the recent bans of right-wingers were unfair. It’s an issue that should, ideally, be settled by the courts in the U.S., too.

Leonid Bershidsky is a Bloomberg columnist.