Dutch photographer vs. global platform

Criminal complaint against Facebook regarding censorship and discrimination

Can Facebook decide for itself what rules it applies to publishing photos, and how it enforces them? No, says photographer Thijs Heslenfeld, also a lawyer. Because Facebook's photo policy is, under certain circumstances, contrary to the Dutch Constitution and the Criminal Code. Here is the entire criminal complaint, filed with the Head prosecutor of the district of Amsterdam.

Criminal complaint against Facebook Benelux regarding discrimination and violation of freedom of speech (censorship)

(The prosecutor needs an estimated six months to investigate the complaint)

Amsterdam, August 8th

mr. Thijs Heslenfeld

Complaint filed against:
Facebook Benelux
Jollemanhof 15
1018 GW Amsterdam

All the Annexes

The facts:

The complainant is a photographer. Over the past eight months, Facebook has removed images from the complainant’s account three times and blocked his account twice, because he published a photo which, according to Facebook, “violates our guidelines regarding nudity or sexual acts”.

 The first instance occurred on or around December 9, 2018, when the complainant posted two pages from the magazine Happinez (Annex 1), which contained a photograph of a group of Himba women and children that was taken by the complainant. The Himba are a semi-nomadic people who live in northwestern Namibia. Himba women do not wear clothing on their torsos.

 Facebook removed the photo and sent the complainant a notification (Annexes 2 and 3). The complainant stated that he does not agree with this and requested a “review” (Annex 4), whereafter Facebook informed him that it had carried out a review, which led to the conclusion that the post violated “our guidelines for the community” (Annex 5).

On or around June 10, 2019, the complainant posted a text with a photograph of a Himba woman who participated in a recording by a sound engineer with whom the complainant was traveling through Namibia. In this instance, his account was blocked for 24 hours (Annex 6). The complainant again requested a review, which led to nothing. Facebook sent a message, mentioning that this instance violated “our Community Guidelines regarding nude photos or pornography” (Annex 7). The message also stated: “We remove certain photos of women’s nipples, but photos of scars after breast surgery and women in the act of breastfeeding are permitted.”

 On June 21, the complainant posted a text about his participation in a large Suriname exhibit that will be held in Amsterdam’s Nieuwe Kerk this year, accompanied by 16 photos, one of which was of a Surinamese girl estimated to be 8 or 9 years of age (Annex 8). Facebook removed the photograph and blocked the complainant’s account for 7 days as a result.

 Facebook has regularly been at the center of controversy in recent years, due to its removal of newsworthy photos or photos with historical significance, such as the World Press Photo of a Vietnamese girl, who was a victim of napalm, and more recently, a photo of a starving girl in Yemen. Only last week, there was some commotion in the Netherlands after Facebook removed a photo by Ed van der Elsken (part of an exhibit at the Fotomuseum in Rotterdam).

When looking at all these events, a pattern emerges: public outcry, apologies from Facebook, and the announcement that the platform will review how these issues can be addressed and how the guidelines can be applied more loosely to photography in fields such as art and current events. Nothing ever comes of it.

Legal framework

 The complainant believes that Facebook’s actions are in violation of the Dutch Constitution, the European Convention on Human Rights (ECHR), and the Dutch Criminal Code. As such, the complainant feels that Facebook is guilty of discrimination and unacceptably restricting freedom of speech, as defined in Articles 1 and 7 of the Dutch Constitution, Articles 10 and 14 of the ECHR, and Articles 429quater and 284 of the Dutch Criminal Code.

 Facebook refers to its own guidelines (https://www.facebook.com/communitystandards/) under the heading “objectionable content” in chapter 13 titled ”Adult Nudity and Sexual Activity”, which formulates the policy as follows: “We restrict the display of nudity or sexual activity because some people in our community may be sensitive to this type of content.” (italicized by TH)

 Further information

 The way in which Facebook has been interfering with the complainant’s photos is discriminatory. As generally stated in the Dutch Constitution: “Discrimination based on religion, beliefs, political opinion, race, gender, or any other grounds is not permitted.” The point of the article is that equivalent cases should not be treated differently. In Article 429quater, the Dutch Criminal Code specifically establishes the relationship between private parties as follows: “Any person who, when executing an office, practicing a profession, or conducting a business, discriminates against persons on the grounds of their race, religion, beliefs, sex or heterosexual/homosexual orientation, shall be punished with a period of imprisonment not exceeding two months or a fine from the third category.”

 In the situation at hand, it can first be argued that Facebook draws an unacceptable distinction between men and women, as photos of male nipples are not currently an issue. Ultimately, the reason that an image cannot be displayed on Facebook is based on the fact that the person in question has breasts. In principle, this unjust distinction affects all women and as such, serves as discrimination on the basis of sex.

In the case of the Himba, this distinction is even more impactful, because Himba women never wear clothing that covers their torsos (and most other women in the world do). The focus on the word “nudity” in Facebook’s guidelines implies that dressed and covered describe the normal way in which people present themselves in public. Nude is therefore the exception and indicates that someone has removed their clothes, implying an act, not a natural state. To illustrate, the

Macmillan Dictionary describes ”nudity” as the condition of not wearingclothes, or of not covering a part of the body that is traditionally covered when you are in public.

This Western approach to the concept of nudity completely misses the mark in the case of the Himba, who traditionally do not cover their torsos. As a result, they are not nude in the sense that Facebook describes the word: they are simply being themselves. By default, Facebook’s policy makes it impossible for Himba women to be presented to the world on this platform or, in this particular instance, for the complainant to show the world what Himba life is like. Himba women are therefore being treated differently than other women. Facebook is discriminating against them.

The removal of the photo of the young girl (Annex 8) is a different story. All that is written above about discrimination and “nudity” also pertains to this image. However, the unacceptable distinction becomes even more pronounced in this case, because it involves a child who has not yet developed breasts. It has already been explained above that the concept of “nudity” in the specific cases concerned here is not a just basis for banning these images, so it stands to reason that the

“sexual activity” criterion employed by Facebook must apply. Even though there is absolutely no sexual “activity” present in these instances, Facebook’s distinction between men and women could be defended using the logic that female breasts have a more sexual component to them than male chests. Even then, this last-ditch attempt to understand why Facebook intervened falls short in this case, because the child in the photo does not have breasts. Ergo, a photo of a boy with a bare chest is permitted, but a photo of a girl with bare chest is not. The distinction is in conflict with the Dutch Constitution and Article 429quater of the Dutch Criminal Code.

The complainant finds it particularly alarming that Facebook categorizes a harmless image of an innocent child as “objectionable content” and “nudity or pornography”. By describing this image as a “nude photo”, Facebook once again confirms that the line of thinking used when reviewing content is rooted in American puritanical restrictiveness, which, in any case, does not reflect the Europe of 2019. By characterizing the photo of a child in this way, Facebook strikingly emphasizes exactly what the platform supposedly intends to prevent through its actions: it sexualizes an innocent child.

It is noteworthy that, with regard to the subject of “nudity”, Facebook often refers to the issue that what is normal in one country may be unusual or prohibited in another. While that is true in itself, Facebook does not make it clear as to why that would mean the platform should blindly accept the most restrictive standards and rules. After all, if that is the basis of the policy, Facebook will ultimately have to incorporate Sharia law. In that sense, the words of Facebook founder and CEO Mark Zuckerberg on January 9, 2015 (shortly after the terrorist attack on Charlie Hebdo) have proven to be of little value:

“Facebook has always been a place where people across the world share their views and ideas. We follow the laws in each country, but we never let one country or group of people dictate what people can share across the world.”

With regard to freedom of speech: Facebook owns the platform to which the complainant publishes. In principle, right of ownership implies that Facebook can determine what content is and is not permitted and in that sense, freedom of speech can be restricted much more easily than in a public forum as constitutional rights are primarily focused on the relationship between government and citizen. However, this does not give Facebook unlimited freedom as the owner of a platform:

 “If a private organization restricts others in their ability to provide information, a conflict between freedom of speech and right of ownership arises. The European Court of Human Rights has ruled on the conflict between these two fundamental rights on several occasions. Using relevant case law, it can be determined that no unrestricted right to media access exists and that private enterprises, such as Facebook, are able to determine what or whom is permitted within the scope of their ownership rights. However, situations may occur in which private persons or organizations are required to facilitate specific opinions, even if this is against their will. In 2003, for instance, the Strasbourg Court ruled that such a situation could arise. "(...) Where, however, the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed (...)". (ECHR, May 6, 2003, no. 44306/98 (Appleby et al v. the United Kingdom).

 In the opinion of the court, if a measure taken by a private organization prevents freedom of speech from being exercised effectively, this may result in a requirement for the government to guarantee this freedom by regulating ownership rights. Simply put, if there is no available alternative to effectively provide information, then ownership rights will have to make room for freedom of speech.” (A. van Hattum, Facebook vs. vrijheid van meningsuiting, www.ITenRecht.nl IT 1067.)

 It is exactly this lower limit (formulated in 2003, when the digital world still looked quite differently) that occurs in the current situation. Facebook now has 2.3 billion users worldwide: a de facto monopoly on the market. The judgement quoted above implies that the scope and power of a platform (as well as its public role) are deciding factors in the extent to which business owners can be restricted in their freedom. In other words, the bigger and more powerful a platform, the more likely it is that those who operate it – under certain conditions - are infringing upon freedom of speech in an unacceptable way. This also means that they have less freedom to prohibit or restrict content based on their own rules.

 The conclusion drawn is that Facebook holds less of a claim to the entrepreneurial freedom implied by its ownership than any other platform, because it is so large, powerful, and extensive, and fulfills such a significant public role that the removal of content (in this case, photos) is much more likely to make it nearly impossible for one to exercise their freedom of speech than would be the case if a less powerful medium were involved. Its tremendous power and scope task the platform with a public duty and responsibility that extend further than those similar, smaller networks.

All things considered, the complainant believes that Facebook has demonstrably violated Article 7 of the Dutch Constitution. He has been forced to adapt to Facebook’s whims under the threat of losing his account. In the complainant’s eyes, being coerced this way is punishable by law. The recent sentencing of the “Blokkeer-Friezen” in a Dutch court (Rb Noord-Nederland

ECLI:NL:RBNNE:2018:4557) appears to provide a guide for this matter, as a component of this ruling was that one private party hindered the freedom of speech of another (in this case, the right to protest), with the court expressly citing Article 7 of the Dutch Constitution as a determining factor for the relationship between these two private parties, confirming the horizontal effect of this article. The public prosecution also referenced the general article on coercion from the Dutch Criminal Code, Article 284. That article could also apply in the situation at hand: the “other factuality” in this case would be that Facebook not only removed the images that the complainant posted, but also punished him by blocking his account for an increasing period of time, all the while threatening him with the complete removal of his account (“If you violate our guidelines again, your account may be restricted or disabled.”)

However, this requires further investigation and is merely one of the reasons that the complainant is filing this criminal complaint, asking the public prosecution office to look into the matter in order to evaluate whether or not Facebook should be facing criminal charges.

Complainant’s website: www.thijsheslenfeld.com

 Facebook guidelines: www.facebook.com/communitystandards/

Criminal complaint against Facebook regarding censorship and discrimination


31 aug 2019
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