In an interim measures ruling on 11 June 2019, the District Court in Warsaw has temporarily prohibited Facebook from removing fan pages, profiles, and groups run by Civil Society Drug Policy Initiative (SIN) on Facebook and Instagram, as well as from blocking individual posts. SIN, a Polish non-profit organisation promoting evidence-based drug policy, filed a lawsuit in May 2019 against Facebook, with the support of the Polish EDRi member Panoptykon Foundation.
SIN filed a lawsuit against Facebook in May 2019 that blocking content restricted, in an unjustified way, the possibility to disseminate information by the organisation, express opinions and communicate with their audience. Concerned about further censorship, SIN was not able to freely carry out their educational activities. Moreover, the removal of content suggested that the organisation’s activity on the platforms was harmful, thus undermining SIN’s credibility. By allowing the request for interim measures, the court decided that SIN substantiated their claims. Although it is only the beginning of the trial, this is a first important step in the fight against excessive and opaque content blocking practices on social media.
This interim measures ruling from 11 June imply that – at least until the final judgement in the case – SIN’s activists may carry out their activities on drug policy without concerns that they will suddenly lose the possibility to communicate with their audience. The court has furthermore obliged Facebook to store profiles, fan pages and groups deleted in 2018 and 2019 but not to restore them. The storage would allow SIN – if they were to win the case – to have the content quickly restored, together with the entire published content, comments by other users, as well as followers and people who liked the fan page. This is not the only good news: the court has also confirmed that Polish users can enforce their rights against the tech giant in Poland. Unfortunately, the court did not approve, at this stage, the request to restore pre-emptively deleted fan pages, profiles, and groups for the duration of the trial. The court argued that it would be a far-fetched measure, which would, in practice, lead to recognising the fundamental claim expressed in the lawsuit.
In June 2019, educational posts in which SIN’s educators cautioned against the use of some substances during hot weather were again blocked from Instagram. SIN received a warning that “subsequent infringements of the community standards” may result in removing the entire profile. Now, after the interim measures ruling, they will be able to catch a breath and continue their social media activity without worrying that they may be blocked again at any time. This “private censorship” is one of the modern-day threats to freedom of speech. Platforms such as Facebook and Instagram have become “gatekeepers” to online expression, and, just as in the SIN’s case, there’s no viable alternative to them. Getting blocked on these platforms is a significant limitation to disseminating information.
The court’s interim decision means that for now, Facebook will not be able to arbitrarily decide to block content published by SIN. By issuing this decision, the court also recognised its jurisdiction to hear the case in Poland under Polish law. This is great news for Polish users and possibly users from other EU Member States. In cases against global internet companies the possibility to claim one’s rights before the domestic court is a condition for a viable access to justice – if the only possibility was to sue them in their home countries, the costs, the language barrier, and a foreign legal system would make it very difficult, if not impossible, for most citizens to exercise their rights.
However, the court’s decision is not final – after the delivery of the decision, Facebook Ireland will have the right to appeal it with the Appeal Court. The decision has been made ex parte, solely on the basis of a position presented by SIN, without the participation of the other party, and it only implements a temporary measure and does not prejudge the final verdict of the entire trial – the main proceedings are only about to begin.
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(Contribution by Anna Obem and Dorota Glowacka, EDRi member Panoptykon Foundation, Poland)