If you post a 19th-century nude painting on Facebook, is it art or impermissible nudity? That question is now cleared for trial in France, after an appeals court there ruled that
an aggrieved user can sue the social network over the issue.
Five years ago, Facebook suspended the account of Frederic Durand-Baissas, a 57-year-old Parisian teacher and art lover, without prior notice. That was the day he posted a photo of Gustave Courbet’s 1866 painting The Origin of the World, which depicts female genitalia.
Durand-Baissas wants his account reactivated and is asking for €20,000 in damages. He said he’s “glad” he has been given the chance to get some sort of explanation from the powerful social network.
“This is a case of free speech and censorship on a social network,” Durand-Baissas said. “If [Facebook] can’t see the difference between an artistic masterpiece and a pornographic image, we in France [can].”
The case is an illustration of the tricky line social media sites walk globally when trying to police explicit content.
“It’s another hole in the fabric, at least in Europe, when it comes to users’ rights running counter to the way these companies operate in the US,” said Steve Jones, a communications professor at the University of Illinois at Chicago.
“Social networks are going to have to be much more careful about how they interact with users and how they summarily make decisions about those users’ accounts,” he said.
Facebook did not return a request for comment. It has never provided any explanation for the suspended account.
The social network’s current “Community Standards” page, which Facebook revised in March 2015 to provide “more detail and clarity,” states: “We restrict the display of nudity because some audiences within our global community may be sensitive to this type of content – particularly because of their cultural background or age.”
But Facebook’s current policy – revised well after Durand-Baissas’ suspension – also now appears to allow postings such as a photo of the Courbet painting. Facebook’s standards page now explicitly states: “We also allow photographs of paintings, sculptures, and other art that depicts nude figures.”
Facebook’s nudity policy has not yet been aired in French court. So far, Facebook lawyers have argued that under its terms of service, lawsuits like the one filed by Durand-Baissas could only be heard by a specific court in California, where Facebook is headquartered. The social network also argued that French consumer rights law doesn’t apply to its users in that country because its worldwide service is free.
The Paris appeals court dismissed those arguments. The ruling could set a legal precedent in France, where Facebook has more than 30 million regular users. It can be appealed to France’s highest court.
The appeals court said the small clause included in Facebook’s terms and conditions requiring any worldwide lawsuits to be heard by the Santa Clara court is “unfair” and excessive. In addition, the judges said the terms and conditions contract signed before creating a Facebook account does fall under consumer rights law in France.
“This is a great satisfaction and a great victory after five years of legal action,” lawyer Stephane Cottineau, who represents the teacher, said. He said it sends a message to all “web giants that they will have now to answer for their possible faults in French courts”.
“On one hand, Facebook shows a total permissiveness regarding violence and ideas conveyed on the social network. And on the other hand, [it] shows an extreme prudishness regarding the body and nudity,” he said.
The French government has lobbied Silicon Valley tech giants to take down violent extremist material, notably after deadly attacks in Paris last year. Facebook has had a tough week in France.
France’s independent privacy watchdog said Facebook is breaching user privacy by tracking and using their personal data, and set a three-month limit ahead of eventual fines. And the government’s anti-fraud agency issued a formal notice giving the company two months to comply with French data protection laws or risk sanctions. It notably accused Facebook of removing content or information posted by users without consultation.