It’s something that has happened to a lot of us who are Facebook users. We post a photograph of a piece of art – sculpture, painting, pop art – and before we know it, we get a notice from Facebook that our account has been suspended while a violation of “Community Standards” is investigated. In this writer’s case, it was this photograph taken of a famous water nymph at the Missouri Botanical Garden one afternoon while she played hooky.
Photo taken by Cultural Limits
For whatever reason, this tripped the “nudity” sensor and became the subject of a 48 hour banishment.
About five years ago, the same sort of thing happened to a French art teacher and lover, Frederic Durand-Baissas, who posted a photo of a painting titled “L’Origine du monde” or “The Origin of the World” by Gustave Courbet which hangs in the Musee d’Orsay in Paris. (This is the Louvre’s little sister where more recent masterpieces are housed, and is one of this writer’s favorite art museums.) The painting is a rather life-like depiction of a woman from just above the waist to mid-thigh with no clothing and her legs open.
Regardless of one’s taste in art, when a nude is done well, it’s done well. And that painting is executed beautifully. It’s still far more suggestive than not, and would not pass American taste in modesty. It’s definitely not something that should be hung in the living room.
In short order, Mssr. Durand-Baissas’ account was suspended for pornography, a banning that is still in place. He sued Facebook for the censorship in French court as a photograph of that painting does not violate community standards in France, nor a careful reading of the recent updates to the policy. A court in that country has decided to hear the case despite the clause in the Facebook user agreement that says any litigation against the social media platform must be filed in Santa Clara, California where Facebook’s headquarters is located. The Associated Press brings us the details.
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.
Which, according to one communications professor exposes a huge gap in communications law and international legal agreements.
“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 U.S.,” 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.
There are two ways to look at the issue. One is that social media platform use is voluntary and subject to the privacy terms of the network itself which is a very American stance, and the other is of meeting expectations of users where they are when not in the U.S. In this case, Facebook is applying American sensibilities to countries that are nowhere near as prudish. However, Mssr. Durand-Baissas’ attorney makes a good point that while nudity – both real and artistic – is tightly controlled by Facebook, some other potentially objectionable content is not.
Lawyer Stephane Cottineau, who represents the teacher, told The Associated Press…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.
Americans of a more conservative leaning political stripe will contend that “ideas conveyed” are washed through a community standard algorithm as well, and cleansed of anything that might disagree with one prevailing paradigm. Violence is not always permitted, either. This lawyer is forgetting that as an American company, Facebook follows American standards of modesty as set forth by the protestant Puritans who founded the place. We all play by their rules.
This is not the only court case to advance against Facebook in France this week.
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.
This is a foreign government making these moves. We’ll see how this one plays out. If Facebook engineers can rig the search engine algorithms to screen out certain content, they can make usage comply with local laws. Television networks do it all the time.