Facebook must compensate the user for the unlawful removal of posts

David Ottolenghi - Senior Counsel

Andrea Antognini - Of Counsel

The Court of Appeal of L'Aquila with the judgment 1659 of November 9, 2021 reconstructs the contractual relationship between the social network and the user who interacts in the community and expresses itself on the scope of freedom of expression of users within the social network.

The plaintiff filed a summary procedure to react to the suspension of his account, for 4 months, by the social network following the publication of some politically motivated posts.

In the first instance, the Court of First Instance sentenced Facebook to pay compensation of 15 thousand euros for moral damages. The present decision concerns the appeal presented by the social network before the Court of Appeal of L'Aquila.

First of all, the Court affirms, in this relationship marked by elements of internationality (intervening between a consumer resident in Italy and a supplier based in Ireland), the jurisdiction of the Italian Judge and the applicability of Italian law to decide the dispute.

It then defines its scope, since it is a contract for adhesion in which the ordinary aspects of contractual responsibility are relevant. It then pauses to analyze the nature of the relationship characterized by onerousness, recalling how free contracts are protected with less force than contracts for consideration (paradigmatic is the difference between donation and sale). The relationship is for consideration in that the patrimonial content of a service can be considered to exist also in those cases in which goods other than money are transferred as consideration for a service which, due to their potential for commercial exploitation, become susceptible to an economic and patrimonial evaluation. It is, in essence, the intrinsic suitability of personal data - legitimately acquired and processed - to be considered, because of the profitable commercial exploitation of the same by the social network.

The Court affirms another interesting principle regarding the clause that provides for the powers of Facebook to remove content and suspend accounts in case of violation of the policies of the social network. The same was considered valid and effective, not being able to be considered vexatious.

The Court finally examined the merits of the case, going to syndicate in concrete powers of Facebook: the work of social must not result in behaviors that violate the freedom of expression that, after granting permission to use their sensitive data and not for free, is the typical content and, so to speak, the raison d'être of the membership of a platform of this type, whose function is precisely to allow users to express themselves and share content that is important to them.

The Court of Appeal therefore deemed illegitimate the suspension of the account, given that "the mere publication of a photo with a comment that is limited to the expression of one's own thoughts (...) is not considered sufficient to violate the standards of the community".

Therefore, the Court ruled that, due to the content posted by the user, Facebook exceeded its censorship power, limiting, however, the compensation for damages in favor of the user to € 3,000, also considering the total number of members of the page that was about 2,500 contacts.

Italian version

• Privacy & Data Protection

Prize operations: relations with Facebook and Instagram

Mattia Raffaelli – Partner

Sofia Mercedes Bovoli– Trainee

It is now increasingly common to come across operations and competitions on social networks, such as Facebook and Instagram, which provide for the awarding of prizes, discounts and refunds given to users in exchange for publishing a "post" or sharing a "story" on Instagram.

These phenomena, more and more growing, are in fact winning Marketing activities that have as a central idea to make the protagonists of the promotional activity the users themselves, inviting them to create content and to personally promote a certain product.

From a legal point of view, however, the applicable legislation is very strict and, unlike prize competitions, does not give discounts.

Our legal system regulates these phenomena in the Presidential Decree N. 430/2001 which includes most of the prize contests that we are used to see on social networks and distinguishes between:

• prize competitions

• options trading

The first ones consist in promotional initiatives through which prizes are awarded without any purchase condition, therefore the awarding of the prize will depend only on fate, on a computer system or on an algorithm. The latter, on the other hand, consist of a contest in which a prize is offered to all those who have purchased a product during the launching of the promotion.

There are only a few exceptions and derogations to the discipline, for example, competitions that have social purposes, those that provide for the production of literary, scientific or artistic works or in the case where the prize is represented by a discount or objects of minimal value are excluded from the application of the regulations.

It is also necessary to point out that, in order to organize a contest on the main Social Networks, such as Facebook and Instagram, although the association with them is no longer an essential requirement, it will be necessary to comply with the specific conditions provided for by the Social Network itself and, in particular, to explicitly exclude in the regulation of the promotion any association with the same, relieving it from any liability that may arise from the launching of the operation or of the contest.

Moreover, the Ministry of Economic Development, through the updated FAQ published on 13 February 2020, has clarified some particularly thorny points of the regulations.

In fact, it has been highlighted how it is possible to exclude the association with Social Networks and consequently dispense them from any liability, only in the case where equal opportunities for all participants are guaranteed. Therefore, the registration to the Social Network cannot constitute a limit to the participation to the promotional initiative, it will be necessary, therefore, to reserve the participation to the contest only to those who were already registered to the Social Network before the beginning of the promotion or to offer to the users the possibility to participate also through different and alternative modalities.

Another important and particularly limiting element is the location of the server for the acquisition of participation in the promotion, which must necessarily be located on Italian territory.

In conclusion, the organization of operations or competitions with prizes is far from being simple and immediate, but it is necessary to provide for the drafting of a detailed regulation, to communicate notice of the call of the competition 15 days before its beginning to the Ministry of Productive Activities, to pay the deposit equal to the value of the prizes as a whole and to adopt a privacy policy in compliance with the GDPR.

Italian version

THE COURT OF ROME ON THE MONITORING DUTIES OF SOCIAL MEDIA.

A recent decision by the Court of Rome established that social media platforms such as Facebook  have no duty to monitor the legitimacy of the contents published, but they are obliged to carry out a subsequent control in case  a user's reports the posting of defamatory content. In its decision, the Court analyzed the possible obligation to remove content from a provider: one wonders, in essence, if, faced with a user's grievance asocial media must proceed without delay or any other investigations to the immediate removal of potential unlawful content. The answer according to the Court of Rome is negative. There is no duty of a preventive monitoring of published contents since the only duty that is burdened and a social media is a subsequent check on a certain content, following the reporting of an unlawful post.
In the opinion of the Court of Rome, therefore, a reported abuse of defamatory content gives rise to an immediate assessment of the reported contents, but an ex parte removal obligation arises only where a manifest and evident illegal nature of the contents appear.
All in all, it is a shareable decision, because on the one hand contemplates the need to make the online service operator responsible, but, on the other hand, it does not attribute a social media with the role of censor.

Indirect and Subliminal Advertisements on Social Media.

The advertising market is undergoing a major change and indirect - subliminal advertisements promoted through online and social networks are becoming more and more common.

Indirect advertising is a clear and explicit message that appears on unusual spaces, but not mentioned as such. Subliminal advertising, instead, isn’t evident. This practice is banned by Italian law but only with respect to TV advertising and although film and television are a fertile ground for this kind of promotion, new challenges have emerged above all on social networks. Indeed, as the world wide web represents a new opportunity to express our thoughts and interests and tastes and a new way of learning and sharing information and content, companies have also begun to use them in an explicit or tacit manner.
On the one hand, we have real advertising spots and sponsorships, although not fully controlled: Facebook and Instagram, for example, check that ads don’t have an illegal content or prohibited by rules but they don’t control the accuracy of the information communicated, nor their congruity with the regulation, since there is no discipline code to be respected.

On the other hand we notice serious “product placement” proliferation within the most clicked profiles.

In this regard, the British Competition and Markets Authority stood up against disguised advertising, which is not recognizable in photos and videos posted on social media. Recently also the American Federal Trade Commission, for the first time addressed the issue, asking “web influencers” to emphasize that hidden  recognizable through hashtags or comments.

However, there are no specific rules governing indirect and subliminal and the terms of use of social media like Instagram, provide and restriction. The question arises as to whether consumers, who shall not be subject to untruthful and deceptive ads, have also the right to distinguish the advertising contents from a “lifestyle tips”.

Recently, the Italian National Consumer Union has questioned the Competition and Market Authority (AGCM) to ask for the legitimacy of indirect and subliminal advertising on social networks. The legal basis for this controversy is the article 22 of the Consumer Code which asserts that the commercial intent must be explicitly stated if it is not obvious from the context or if it is capable of misleading the consumer.

The AGCM should soon clarify the issue and provide adequate information both on the relationships between producer and influencer, and on the obligation to declare the advertising purpose of the posts.

Meanwhile, Instagram has launched a new tag, "Paid Partnership with", so that users can include it in their stories and post. Alternatively, many bloggers, including the most famous Chiara Ferragni, have started using some "claim-hashtags" such as #ad, #advertisement, or #advertising to highlight the commercial purpose of their photo, protecting the consumer.
 

Facebook's Copyright Infringement case continues in front of the Court of Milan

The case between Facebook and Faround will be heard in front of the Milan Court of Appeal on April 4. In the first degree Facebook was sentenced for the first time for unfair competition and copyright violations against Faround, a software application created in 2012  by the Milan-based company Business Competence.

On the first instance the Milan’s Court, had held that Facebook’s application Nearby was infringing Fararound’s electronic database which is protected under Italian Law.
Faround selects data on Facebook, through the profiles of registered users, and organizes and display them on an interactive map. The map then shows shops near to the user's position, also with relatives reviews and information on discounts and offers. Indeed this information is not owned by Faround. However the Court held that the mode of their organization holds a degree of originality which should be granted copyright protection. In fact, "the previous programs developed by Facebook (Facebook Places) and by third parties (Foursquare and Yelp) did not have the same capabilities as Faround: the first was a kind of pager to reach friends and not a geolocation of shops close to the user, while others were designed on the basis of logical algorithms working on the base of data entry provided by members of their social networks, and not Facebook’s.”
For these reasons, the Business Competence Srl accused and sued Facebook for infringing the application’s concept and format, launched with the name of Nearby. In addition, Nearby attracted professional advertisers, perpetrating unfair practices on the advertising market.

The Court of Milan, found that the two applications had the same functionalities and overlapped and ruled for the publication of the decision on the newspapers "Corriere della Sera" and "Il Sole 24 Ore" and, for at least fifteen days, on home page of facebook.com. The Court also banned any further use of Nearby in Italy, placing a fine of 45 thousand euro for each day of violation of its order . Facebook has appealed the decision in front of the Appeal  Court of Milan, which, at the moment, has rejected the suspension request of the provisional measures imposed at first instance.
 

The Court of Rome Rules on Copyrights Published on Facebook

The court of Rome reaffirms the application of the rules of copyright for the pictures posted on the social network by establishing that publication of photos on the Facebook page of the person who has taken them "does not involve the complete waiver of the relative copyright".

According to the Court, the freedom of use of the content posted by users by setting the 'Public' function does not cover the content that is published and which covered by intellectual property rights of users, for which the only license is the non-exclusive, transferable granted to Facebook". Under this principle the author of some photos published on Facebook was awarded damages against a newspaper that had published the same without permission.

The case stems from the publication of some photos on the personal page Facebook of a young photographer shot in nightclub in Rome. The photos then appeared, unknown to the author, in a national newspaper in support of a series of newspaper articles, related to the phenomenon of frequenting nightclubs by persons of young age and subsequently re-used by some programs television of national importance.