Facebook and censorship in France

A 19th century painting has the potential to dramatically alter a 21st century social network. A French court last week agreed to hear the case of Frédéric Durand-Baissas, who posted a photo on Facebook of L’Origine du monde (The Origin of the World), a painting from 1866 that features an explicit close-up of a naked woman. The photo was taken down, and Durand-Baissas’ account suspended for violating Facebook’s terms of use. He sued Facebook on free speech grounds.

Facebook, as its critics are quick to point out, is far from a perfect actor on matters of free speech and censorship. (Sipa via AP Images)
Facebook, as its critics are quick to point out, is far from a perfect actor on matters of free speech and censorship. (Sipa via AP Images)

That the French court decided to hear the case at all is an important — and potentially troubling — precedent. All Facebook users who sign terms of use agree to a clause that states that only a California court can rule in legal disputes related to the social network’s services. At a hearing in January in France, Facebook’s counsel Caroline Lyannaz pressed the point that Durand-Baissas had agreed to these same terms of use, meaning that he had relinquished his right to bring a case against Facebook in French courts. But last week, a Paris high court called that clause “abusive” and ruled that French courts have jurisdiction in the case.

For the plaintiff’s lawyer, Stephane Cottineau, the very decision to hear the case was a victory regardless of whether the Parisian court sides with Facebook in the end or not. “This decision will create jurisprudence for other social media and other Internet giants who use their being headquartered abroad, mainly in the United States, to attempt to evade French law.” But for Facebook, and for any American tech company with interests oversees (which is to say, virtually all of them), this case could pose a major headache.

In this instance, the French government may show some deference to the principle of free speech, if for no other reason than that L’Origine du monde is regarded as a masterpiece and finds it home in the famed Musée d’Orsay. Even if Cottineau’s and Durand-Baissas’ rationale is legal, the appeal is emotional: for the French, the painting is a masterwork, not pornography.

But this is, of course, a particular case, and in the past, the French haven’t shown the same level of commitment to freedom of expression. Free speech advocates quick to praise the French government in this case should remember that this is the same government pursuing anti-hate speech laws targeting social media companies and Internet operators. Consider French President Francois Hollande’s remarks on that law: “The big operators, and we know who they are, can no longer close their eyes if they are considered accomplices of what they host … We must act at the European and international level to define a legal framework so that Internet platforms which manage social media be considered responsible, and that sanctions can be taken.” French Prime Minister Manuel Valls expressed a similar sentiment, arguing that, in the wake of the Charlie Hebdo attacks, France “must respond to this exceptional situation with exceptional measures.”

Facebook, as its critics are quick to point out, is far from a perfect actor on matters of free speech and censorship. But Facebook must at least wrestle with its decisions in public — and face the kind of scrutiny that many governments around the world may not. For free speech advocates and civil libertarians, the real nightmare scenario may not be a single French decision affecting the social network’s operations in one European country. It’s a foreign court claiming jurisdiction over a core piece of an American company’s operation. If successful, there could be no end to the legal pressure Facebook would experience around the world — and in particular, the pressure it would face from repressive governments whose record on matters of free speech is anything

This may be that rare instance in which a French court upholding Facebook’s right to censor a user could be the thing that protects free speech in other parts of the world. The court will hear the case on May 21, and its outcome will be closely watched.

Originally Posted at The Washington Examiner

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