According to information provided by the Ministry of Digital Affairs, as in the case of appeals filed directly on Facebook, users will have to fill in a complaint form also in the “second instance” through NASK. At this stage, it is not possible to assess to what extent this method will enable the presentation of users’ arguments, in particular how long such appeals will be possible and whether it will be possible to attach any files, e.g. screen shots documenting the content or reactions of other users after their publication.

Although the appeal platform will be created under the supervision of the Ministry of Digital Affairs, the ministry will not assess the appeals filed there. Administrative channels, let alone a proper legal process, will not settle such cases. Instead, the users’ complaints will go back to Facebook and Facebook will reconsider them. After receiving such a complaint, the portal will have three days to prepare and send back its reasoned reply, also via the NASK platform.

The possibility of bringing the case back to Facebook for consideration and receiving a justification for the decision to remove content will be the added value of the new mechanism.

Appeal not for everyone

However, the new procedure will not be open to everyone. It will be limited on three grounds. First, because of the type of content deleted. Categories of content entitled to a second appeal will be listed on the NASK platform. Especially at the beginning, this route will be significantly limited: in the pilot phase of the appeal, it will concern mainly deleted content related to organisation of assemblies and public fundraising. It is not yet clear whether the appeals will also be limited to specific methods of deleting content. In practice, users are confronted with various decisions, such as takedown of a page or permanent deletion of a group. Facebook’s current rules use the terms “suspension” and “closure.” Which of these cases will qualify for the “second instance” remains unanswered for the time being.

Second, the new mechanism will also not apply to content deleted prior to conclusion of the agreement. In practice, this means that it will not be possible to call into question decisions to delete users’ content made before November 2018.

Third, appeals via the NASK platform will be available only to ePUAP profile holders. The appeal will have to be signed with a trusted electronic signature, available only to users of such a profile. This condition may turn out to be an impediment in particular for entities operating in a less formalised manner, e.g. small businesses, foundations or associations.

Is this a step forward?

Conclusion of the agreement confirms that Facebook knows that the current mechanism for appeals against decisions to remove content is not satisfactory. In our opinion, however, the new mechanism is not a satisfactory solution either.

Thanks to the new platform, Facebook users will indeed have an additional opportunity to fight for the restoration of their publications. They will also be able to learn about the motives that prompted the service to remove the content. The agreement with the Ministry of Digital Affairs provides users with a tool that will certainly not worsen their situation, and may reduce the information asymmetry between users and Facebook regarding the reasons for deletion.

However, this is only a substitute for the necessary solutions. Facebook is currently one of the largest forums for expression and exchange of ideas. As the US Supreme Court recently pointed out in Packingham v. North Carolina, such an important social role of social media means that restricting access to them translates into restrictions on the exercise of freedom of expression. The timeliness of this remark is not limited to the United States: social media are a global tool for expressing opinions, and the law, including Polish law, should take this into account.

We need a transparent mechanism to review the legality of decisions made by Facebook and other social platforms that hinder the publication of content on their portals. The best way to do so seems to be to establish a judicial route for those who dispute the legitimacy of such decisions. This would make it possible to assess them in the light of fundamental rights of portal users (in particular the right to freedom of speech and assembly), as well as to develop a standard in case law to protect users against arbitrary deletions of content. Such a solution, introduced at the statutory level, would also provide an opportunity for a more uniform approach to the problem than agreements negotiated separately with specific social media sites.

Bartosz Troczyński, Łukasz Lasek