Facebook vs. CasaPound: the deactivation of CasaPound’s page and account is unlawful

An order issued on April 24, in the dispute between Facebook Ireland Ltd. and the Italian far-right movement CasaPound, saw CasaPound score its second victory. The Court of Rome, in fact, dismissed the appeal filed by Facebook against the preliminary decision of 12 December 2019, which had ordered the social network to immediately reactivate the political movement’s page and the personal account of its admin, which had previously been blocked for alleged infringements of Facebook’s Terms of Use.

Here is the background of the order. Claiming that the exclusion of CasaPound from the social network had automatically caused its exclusion from political debate, CasaPound had first sent a warning letter to Facebook (which had not provided any notice or explanation for the measures taken) and subsequently initiated  proceedings before the Court of Rome in order to obtain the reactivation of the page and the account. In opposing this request, Facebook had asserted the infringement of the platform’s Terms of Use by CasaPound, due to a series of incidents (statements and protests concerning Rom camps, the display of posters containing the Celtic Cross) that happened outside the platform but were attributable to CasaPound’s members.  This led the provider to qualify the political movement as an organisation that incites hatred and violence under the definition provided in the Terms of Use; a definition that allowed Facebook to terminate the contract.

In the preliminary decision under appeal, the Court of Rome had found that the promotion of the aims of the far-right movement on the related Facebook page did not, in itself, constitute an incitement to hatred and violence. In addition, CasaPound could not be deemed responsible for the incidents at the origin of the dispute, as these incidents were attributable to its members and supporters, and therefore CasaPound should not suffer the measures imposed in relation to its page and account. Therefore, after having ascertained that no infringement of the Terms of Use had been committed, the Court had granted CasaPound’s claims, pointing out the importance of Facebook in the context of contemporary politics, and its special obligation to protect party pluralism (Article 49 of the Italian Constitution), freedom of association (Article 18) and freedom of expression (Article 21), which constitutes for the service provider “at the same time a condition and a limit in the relationship with the users”.

That order was appealed by Facebook, which claimed firstly that the political nature of CasaPound, on the one hand, did not exempt it from complying with the Terms of Use of the platform, and, on the other hand, did not result in the provider’s “public” obligation to guarantee the constitutional rights mentioned above. Secondly, Facebook stressed the infringement of the contractual terms by CasaPound: although, in fact, the disputed incidents of violence and racism had happened outside the context of the social network, the incidents had led Facebook to qualify CasaPound as an organisation that incites hatred and violence due to the fact that the incidents had been routinely instigated by several CasaPound supporters (including top representatives) in its name and in accordance with the ideas professed by the self-proclaimed fascist movement. This qualification allowed Facebook, in accordance with its Terms of Use, to withdraw from the service by disabling CasaPound’s page and account.

On the other side, CasaPound claimed that Facebook was not entitled to take into consideration incidents that had occurred outside the platform and, in any case, CasaPound’s reference to historical fascism did not automatically imply its adherence to the racist and discriminatory ideas advocated by the latter. Therefore, there had been no infringement of the community’s standards.

With the decision discussed here, the Judge dismissed Facebook’s appeal and ascertained that CasaPound had not breached the social network’s Terms of Use.

The Judge firstly stated that, although the contract concluded between Facebook and the user is unquestionably an ordinary civil law contract that does not involve any special obligation to be borne by the service provider, such a contract should be interpreted in accordance with the Italian Constitution. Therefore, those provisions in the Terms of Use that supported Facebook’s withdrawal of service, which give relevance to the intrinsic characteristics of the political association concerned (including where these characteristics are not manifested in the use of the Facebook service) are only lawful to the extent that they are interpreted and applied in compliance with the principles of freedom of expression and association.

In the present case, the Judge noted, the appellant’s claims were mostly based on the unlawful nature of CasaPound’s association and its irreconcilability with Facebook standards, rather than on specific infringements attributable to CasaPound or its members: in other words, according to Facebook, the reference made by CasaPound to the fascist ideology implied in itself adherence to discriminatory/racist ideas, incompatible with those of the Facebook service. According to Facebook’s Terms of Use, in such situations, the provider was entitled to withdraw from the contract.

However, the Judge underlined that the unlawful nature of an association must be assessed under Italian laws and, based on the evidence collected during the proceedings, the evaluation carried out by Facebook ended up unduly allowing the provider to terminate the contractual relationship on the basis of an act of legitimate freedom of thought, protected by Article 21 of the Italian Constitution, and in breach of the principle of free association, protected by Article 18. Italian laws, in fact, and in particular Law no. 645/1952 which prohibits the reconstitution of the fascist party, do not prohibit neo-fascist associations in themselves (i.e. by virtue of their ideological reference to fascism), but only to the extent that their way of acting in political life implies the reconstitution of the fascist party. Otherwise, according to the Judge, there would be an undue limitation of the principle of free expression of thought and free association.

Based on the above reasoning, the Judge dismissed the appeal and ordered Facebook to immediately reactivate both CasaPound’s page and account and to pay legal fees for 12,000 Euros.