The power point presentation of the lecture held by Professor Giovanni Maria Riccio on "Social Networks and Civil Liability" at the International Summer School on Cyber Law which took place in Moscow June 30 - July 4, 2014.

1. SOCIAL NETWORKS AND
CIVIL LIABILITY
INTERNATIONAL SUMMER SCHOOOL ON CYBER
LAW – MOSCOW (JULY 2014)
Giovanni Maria Riccio
Università di Salerno (Italy)
gmriccio@unisa.it
1

2. Main issues
2
 Market Analysis
 Legal Framework
 Main Legal Issues for SNSs
 Application to SNSs of the e-commerce directive
 Jurisdiction / Legal Imperialism
 Soft-Law vs. Hard Law / Private vs. Public
enforcement

3. New Economy Peculiarities
3
 Start-up costs can be extremely low (e.g. eBay;
Facebook) and generate huge profits.
 Internet creates monopolies (If a web service is
efficient, then everybody will use it: e.g.
Google)
 Large internet companies are aware of the
“evanescence” of some internet creations (e.g.
Second Life), so they try to acquire other
portion of the new economy market (e.g. eBay
bought PayPal and Skype; Google bought
YouTube; Microsoft was interested in Facebook;
etc.)

4. 4

5. Virtual communities with more than 10
millions of users
5
 Facebook (USA)
 Qzone (China)
 Twitter (USA)
 Google+ (USA)
 WhatsApp (USA)
 Sina Weibo (China)
 Habbo (Finland)
 Badoo (UK)
 Vkontakte (Russia)

6. Italian case
6

7. Russian case
7

8. 8

9. 9

10. 10

11. Let’s talk about law
 If I publish a picture
of a model snapped
on a private beach
who’s liable?
 The editor of the
website?
 The ISP?
 Both?

12. E-Commerce Directive
12
 Principles
 ISPs are not liable if their activity is limited to a
mere technical role
 If they don’t transmit information on digital networks
and don’t select contents or recipients of the
information transmitted
 ISPs don’t have a general monitoring obligations on
contents published by third parties

13. 13
 The e-commerce directive has imitated, almost verbatim,
the DMCA and the German TeledienstGesetz
 Unlike DMCA, EU directive does not regulate NTD
procedures
 It covers all the offences (criminal and civil), not limited
to copyright law
 A world wide law? Or a new legal imperialism?
 Il doesn’t cover search engines, linking and social
network platforms
 Do we need an update of the directive?

14. Hosting
14
 Article 14 ECD – Host provider is not liable if
 it does not have actual knowledge of illegal activity
or information
 as regards claims for damages, is not aware of facts
or circumstances from which the illegal activity or
information is apparent
 upon obtaining such knowledge or awareness, acts
expeditiously to remove or to disable access to the
information

15. Monitoring obligations
15
 Article 15: Member States can not impose a
general obligation on providers to monitor the
information which they transmit or store, or a
general obligation to search actively for evidence
of illegal activity
 Doe v. MySpace Inc., 2008 WL 2068064 (5th Cir.
May 16, 2008) – Does MySpace have a duty to
police its website to prevent online communications
that lead to offline crimes?

16. Two Options
 Strict Liability Rule
 Application of the
enterprise liability
standard (press law)
 ISPs are liable for the
information transmitted
 It doesn’t matter if
they are in the position
to check these contents
or not
 Negligence Rule
 ISPs are liable only if
they act with
negligence
 Professional
negligence (e.g. if
they don’t use filters;
if informed of an
illicit content they do
not act to remove it)
16

17. EU Directive – Fault liability standard
17
The application of the strict liability regime could cause:
o Reduction of the quantity of ISPs: only the ISPs which can
bear the cost of accidents will stand on the market
o Reduction of the quality of information: if they are liable in
any case, ISPs will choose to publish exclusively safe
information (e.g. they will publish a web site on Greek
recipes instead of a blog on the war on Iraq)
o Lack of the deterrence effect: if I am liable in any case, I
have no interest in developing instruments for preventing
violations (e.g. filters)

18. Definition of Social Network
18
 No legal definition (laws, courts decisions, etc.)
 A dedicated website or other application which
enables users to communicate with each other by
posting information, comments, messages, images,
etc.
 SNSs are “information society services” pursuant to
art. 1 par. 2 of Directive 98/34/EC

19. Main Legal Issues
19
 Is the e-commerce directive applicable to SNS?
 Private enforcement / Soft (?) Law
 Jurisdiction/Applicable Law
 Copyright infringements
 Privacy
 Defamation

20. 20
 The issue of the applicability of the ECD to SNS is
not often addressed to the Courts yet

21. Applicable Law
21
 Twitter: “You may use the Services only if you can
form a binding contract with Twitter and are not a
person barred from receiving services under the
laws of the United States or other applicable
jurisdiction”
 High Court of Berlin, Feb. 2014, Facebook
provided no evidence that the processing of
personal data was made from Ireland – FB is
subject to German DP Law

22. Facebook’s TOS
22
 Special Provisions Applicable to Users Outside the United States
We strive to create a global community with consistent standards for
everyone, but we also strive to respect local laws. The following
provisions apply to users and non-users who interact with Facebook
outside the United States:
 You consent to having your personal data transferred to and processed in
the United States.
 If you are located in a country embargoed by the United States, or are
on the U.S. Treasury Department's list of Specially Designated Nationals
you will not engage in commercial activities on Facebook (such as
advertising or payments) or operate a Platform application or website.
You will not use Facebook if you are prohibited from receiving products,
services, or software originating from the United States.
 All applicable laws – reference to Video Privacy Protection Act
(VPPA) / necessity of an opt-in consent

23. Jurisdiction
23
 Former TOS held the jurisdiction of the Court of the
California
 Cour d’Appel Pau (FRA), March 23, 2012: the
clause of TOS has no effect as it hasn’t been
specifically approved by the user
 Necessity of TOS in the language of the user

24. Privacy
24

25. Who is the data controller?
25
 The subject which determines the purposes and means of
the processing of personal data
 The SNSs?
 Users?
 “Household exemption”: activities which are carried out
in the course of private or family life (see ECJ, Lindqvist)
 The exemption doesn’t cover cases where the data
collected are accessible to an unrestricted number of
people (see ECJ, Satamedia)
 See ARTICLE 29 DATA PROTECTION WORKING PARTY,
Opinion 5/2009 on online social networking

26. Third parties’ contents
26
 Users should be advised by SNS that pictures or
information about others, should only be uploaded
with their consent (WP Art. 29)
 Facebook’s TOS: “If you collect information from
users, you will: obtain their consent, make it clear
you (and not Facebook) are the one collecting their
information, and post a privacy policy explaining
what information you collect and how you will use
it”

27. Effective protection
27
 Privacy by design approach
 SNS should offer privacy-friendly default settings
(WP Art. 29)
 SNSs TOS and privacy policies are generally
extremely long, with several links to other pages
 Users should, in general, be allowed to adopt a
pseudonym – Facebook doesn’t accept pseudonyms
(direct marketing)

28. Disclosure of personal data
28
 Twitter has been ordered by two French courts to
disclose personal data of users in case of fake
profiles (TGI Paris, April 4, 2013) or antisemitic
statements (24 janvier 2013)
 Twitter argued that an international rogatory would
have needed
 Courts refused this argument

29. Access to Personal Data
29
 District Court Virginia [8 (E.D. Va. Nov. 10, 2011]:
government may obtain Twitter users’ Internet
Protocol addresses without notice to the users
 Is it an application of the Fourth Amendment?

30. Ownership of tweets
30
 New York City District Attorney's Office requested
Twitter information about Malcolm Harris
 He was one of the protesters arrested on the Brooklyn
Bridge in October 2011 during the “Occupy Wall
Street” protest
 Twitter, pursuant to its TOS, refused to disclose the
tweets, stating that any user is the owner of his tweets
 According to the Court of NYC, which authorized a
subpoena to Twitter, there is no proprietary interest in
the case

31. Defamation
31

32. Main Issues on Defamation
32
 Jurisdiction
 Involvement of SNS
 Disclosure of personal data

33. Defamation /ECJ eDate Advertising
GmbH and Martinez (2011)
33
 Art. 3 (2) Council Regulation (EC) 44/2001
 “A person domiciled in a Member State may, in an
other Member State, be sued in matters relating to
a tort, delict, or quasi-delict, in the courts for the
place where the harmful event occurred or may
occur”

34. 34
 According to the Court a person who has suffered a
defamation “may bring an action in one forum in
respect of all of the damage caused, depending on
the place in which the damage caused in the
European Union by that infringement occurred”
 “Given that the impact which material placed online
is liable to have on an individual’s personality rights
might best be assessed by the court of the place
where the alleged victim has his centre of interests”

35. 35
 Christopher Boffoli sued Twitter for its refusal to
remove infringing copies of his photos from users'
accounts despite being notified of takedown
requests
 Settlement between the counterparts

36. How SNS remove contents
36
 YouTube: based on the DMCA’s notification of the
complaining party
 Copyright claims are used even for other
infringements
 Facebook: makes some investigations before
removing (eg: trademark infringement)

37. 37

38. Facebook
38
 When something gets reported to Facebook, we'll
review it and remove anything that doesn't follow
the Facebook Community Standards
 Is it compliant with the ECD’s neutrality principle?

39. Virginia v. Black, 538 U.S. 343 (2003)
39

40. Virginia v. Black
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 Virginia's statute against cross burning is
unconstitutional
 Cross burning done with an intent to intimidate can
be limited
 Would Facebook allow such topics, such as the
predominance of a race on another or racist
statements

41. 41

42. What does Facebook consider
to be hate speech?
42
 Content that attacks people based on their actual or
perceived race, ethnicity, national origin, religion,
sex, gender, sexual orientation, disability or disease
is not allowed. We do, however, allow clear
attempts at humor or satire that might otherwise be
considered a possible threat or attack. This includes
content that many people may find to be in bad
taste (ex: jokes, stand-up comedy, popular song
lyrics, etc.).

43. 43
 The need of uncomfortable contents in order to
promote a strong public debate (see Sunstein,
Republic.com)
 What’s the real “political” power of SNSs or over-
the-top (OTT) players?
 ECJ – Google case and right to be forgotten

44. DO KEEP IN TOUCH!
Via dei Barbieri, 6
00186 Rome
Italy
gmriccio@e-lex.it
www.e-lex.it