With the continuous development of technology and the rapid spread of communication and contact in the online space, many exciting legal issues arise, one of the most frequently examined segments of which is the relationship between the user and the content service provider operating an online social media platform.
In case a content service provider permanently deletes content published by a user that is classified as unlawful and, ad absurdum, permanently deletes the user’s account, the question arises whether the user has any possibility of taking legal action against these measures.
What are the expectations vis-à-vis social media platforms?
In connection with the initial question, we must first examine whether there is any social and/or legal expectation vis-à-vis hosting service providers (typically Facebook) regarding the removal of unlawful content. We can basically give an affirmative answer to this question: social media providers are not only entitled to prevent the appearance of unlawful content, but this is also an expectation towards them, because this is the only means by which infringement can be avoided. In this context, it should be emphasized that the reaction of the law is usually an ex post reaction (the subsequent sanctioning of a legally prohibited behavior), therefore it is important that service providers are given a role in the legal protection process, because without their participation, effective and preventive legal protection cannot be ensured. The notice and takedown system established in copyright law serves this purpose, which also governs the liability of hosting service providers. The hosting service provider must therefore control potentially infringing behavior and strive to reduce the impact of the infringement.
Are there any legal remedies against the decision of the service provider?
An exciting legal question arises in connection with the content control role of hosting service providers when the service provider removes content that it considers illegal, but the user does not agree with this action. The question is whether the user can challenge the hosting service provider’s decision or action in such a case, and if so, on what basis. Below, I will briefly present a recent court case related to the outlined legal issue.
The specific case brought before the Hungarian courts was that a company providing an internet-based platform service permanently deleted the profile of a Hungarian user, after several warnings, on the grounds that several of the user’s published posts violated the hate speech provisions of the terms of use and the community standards. The user filed a civil lawsuit seeking the reinstatement of his account. The user claimed that the service provider had violated his personal rights (primarily the right to freedom of speech and to communicate with others) by deleting the profile.
The Szeged County Court as first instance court dismissed the user’s claim by its judgment No 7.P.21.305/2021/19. In the reasoning of its judgment, the court pointed out that a private law contract was concluded between the parties for the use of internet-based services provided by the service provider and the service provider is entitled, based on contractual freedom, to determine the framework within which the user may use the service, as well as what the service provider considers non-compliant with the principles that have become part of the contract in order to protect the rights and interests of other persons using the social platform. The court also noted that by accepting the terms of use, the user acknowledged that he or she must comply with the rules of conduct set by the service provider during use, and that the service provider was entitled to verify compliance with the principles and apply appropriate sanctions in the event of the publication of prohibited content. The legal basis of the action could therefore be examined solely on a contractual basis: if the service provider deleted the user’s profile in accordance with the contractual provisions, it had not committed a breach of law.
The Szeged Higher Court of Appeal, acting upon the user’s appeal, upheld the judgment of the first instance court by its judgment No Pf.II.20.147/2022/24. The appeal court also found that a contractual relationship had been established between the parties, the content of which was determined by the general terms and conditions developed by the service provider, which became part of the contract upon registration. The decision also indicates that, following the principle of freedom of contract, the service provider was entitled to determine what content it would allow to be published, and the user also freely decided whether to use the service based on the general terms and conditions, thereby accepting the restriction of his right to freeodom of speech.
The plaintiff filed an application for legal revision against the final judgment. The Kúria upheld the final judgment by its decision No Pfv.IV.20.914/2023/7. In the reasoning of the judgment, the Kúria stated that the lower courts had correctly assumed that the assessment of the violation alleged by the user (unlawful deletion of a profile) should not be based on the scope of interpretation specified for the examination of freedom of speech. During the registration required for the conclusion of the service contract, the user accepted the general terms and conditions required for the use of the service, therefore, the content of these contractual provisions had to be examined during the assessment of the legal dispute. This resulted in the assessment of the alleged violation of the contract not being based on what the user considers to be a statement that offends other persons, but on the basis of the service provider’s definition of hate speech, which had to be examined and qualified.
The service provider deletes what it wants – according to the terms of use specified by the service provider
The courts that heard the case therefore considered the dispute regarding the removal of illegal content to be a purely contractual dispute, and derived the right to delete the user’s account from the contractual freedom of the parties. The courts underlined that by accepting the terms of use, a contract is concluded between the parties, and the user undertakes a kind of self-restraint by not publishing any entry that violates the standards of conduct and requirements set by the platform service provider when using the services. The relevant case law based on the decision of the Kúria therefore currently assesses what can be considered illegal and sanctionable content solely on the basis of the contractual terms and conditions established by the service provider, and constitutional (fundamental rights) standards cannot be examined in this context. Given the current activity of hosting service providers in relation to content control and the increasing number of user complaints, new cases and decisions are expected in the near future that may refine the current practice.