13 December 2019

In the last few weeks, fake advertisements featuring Belgian celebrities on Facebook have attracted a lot of attention. This problem is also known in the Netherlands. The Amsterdam District Court has ruled that Facebook should cease any present and future publication on its platforms of fake advertisements with the name and picture of television producer John De Mol. The court considered the measures which Facebook already undertakes to prevent the publication of fake advertisements to be insufficient.

The Amsterdam District Court ruled in its judgment of 11 November 2019 that Facebook should cease the publication of fake advertisements on Facebook and Instagram. John De Mol, a famous Dutch media entrepreneur and television producer, had issued proceedings against Facebook Netherlands and Facebook Ireland after fake advertisements had been published on Facebook for several months in which he was presented as a successful Bitcoin investor. The swindlers who launched the advertisements have collected more than EUR 1.7 million in the Netherlands from the victims.

Illegitimate advertisements

The court considers the use of the picture and name of a celebrity without the celebrity's consent to be an infringement of his/her personal life, honour, good name and reputation. The fake advertisements had the clear goal of fraud. There was therefore no doubt that the advertisements were of an illegitimate nature.

John De Mol argued, among other things, that Facebook should take measures to immediately withdraw fake advertisements from its platforms, but also to prevent such fake advertisements appearing on its platforms again.

Exemption clause (safe harbour)

Facebook claimed that it already took enough measures to prevent the publication of fake advertisements on its platforms. Facebook argued that it could rely on the exemption provision (safe harbour) for host providers as provided in Article 14(1) of the Electronic Commerce Directive (Directive 2000/31/EC). Host providers can benefit from this exemption provision if they have no knowledge of the illegal activity or information or if they act expeditiously to remove or disable access to that information as soon as they become aware of it.

The court held that Facebook's main revenue model consists of the facilitation of advertisements and the generation of profits from these advertisements. According to the court, Facebook plays an active role in determining the content of the advertisements. Facebook mentions in its online advertising policy that it checks the advertisements prior to their publication on Facebook or Instagram. Due to this active role of Facebook as an advertising platform, Facebook cannot rely on the safe harbour provision.

Prohibition of a general monitoring obligation

Facebook alleged that the measures sought would infringe the prohibition of a general monitoring obligation. Article 15 of the Electronic Commerce Directive prohibits Member States from imposing a general obligation on service providers to monitor the information which they transmit or store or a general obligation to actively seek facts or circumstances indicating illegal activity.

According to the court, the prohibition of a general monitoring obligation does not prevent an injunction requiring action to be taken against unlawful acts. The court held that the measures sought by the plaintiff were specific and fact-oriented. Therefore, these measures did not constitute an obligation for general monitoring.

The court referred in its judgment to the judgment of 3 October 2019 of the Court of Justice of the European Union in a dispute between an Austrian politician and Facebook (C-18/18). A Facebook user had published a picture of the politician on his Facebook page with a comment which the Austrian court found to be harmful to the politician's reputation. The Austrian judge at first instance had ordered Facebook to cease and desist from publishing and/or distributing photographs showing the politician if the accompanying text contained the verbatim assertions and/or used words with an equivalent meaning to that of the comment that had given rise to the dispute.

In response to the preliminary question from the highest federal judge in Austria, the Court of Justice stated that the prohibition of a general monitoring obligation did not exclude the possibility of a court injunction requiring a host provider to remove information or to block access to information with content identical to information which had previously been declared to be unlawful. The Court of Justice also ruled that Member States can order a host provider to remove or block access to information worldwide within the framework of the relevant international law.

The Dutch court also refuted Facebook's argument that the right to freedom of speech as protected under Article 10 ECHR would prevent the measures sought.

Technical (im)possibility of the measures

Facebook finally argued that the measures sought were technically impossible, or at least would not be effective. Facebook claimed that it already implemented sufficient measures to prevent the publication of fake advertisements. Facebook uses, among other things, an ad review system which includes checking for violation of its advertising policy; this also includes manual checking. In addition, Facebook declared that advertisements are also examined ex post. Facebook also asserted that it denies access to its platforms to advertisers who violate its advertising policy.

The court found that the measures taken by Facebook were apparently not sufficient, since the fake advertisements with John De Mol kept appearing on Facebook. The court reminded Facebook of its responsibility for its own advertising platform and the impact of the illegitimate advertisements. The court ruled that, in the light of its social responsibility, Facebook could be expected to take the necessary measures in the fight against fake advertisements, even if these measures would be technically complicated and would require additional manpower and money.

The court ordered Facebook to do everything in its power to remove fake advertisements from Facebook and Instagram and to prevent them from reappearing. The court imposed an injunction on Facebook to cease the publication of fake advertisements on penalty of a fine.

Identification of data advertisers

The court also ordered Facebook – on penalty of a fine – to provide the plaintiff with the identity and the accounts involved in the swindle, provided that it has these data at its disposal.

What will happen in Belgium?

Several celebrities in our country have also unwillingly become the target of fake advertisements on Facebook. It remains to be seen whether the Belgian courts will follow the judgment of the Amsterdam District Court, and/or whether, in the light of this judgment and the decision of the Court of Justice of 3 October 2019, Facebook will take its own measures to stop and prevent the publication of fake advertisements on its platforms.