Art or impermissible nudity? French court will decide

A visitor looks at Gustave Courbet's "The Origin of the World," painting which depicts female genitalia, a Paris museum on Friday.


PARIS (AP) — If you post a 19th-century nude painting on Facebook, is it art or impermissible nudity? That's the question in France, after an appeals court there ruled that an aggrieved user can sue the social network over the issue.

Five years ago, Facebook suspended the account of Frederic Durand-Baissas, 57, a Parisian teacher and art lover, without prior notice on the same day that he posted a photo of Gustave Courbet's 1866 painting "The Origin of the World," which depicts female genitalia.

Durand-Baissas wants his account reactivated and is asking for $22,550 in damages. He said he's glad he has been given the chance to get some sort of explanation from the powerful social network.

"This is a case of free speech and censorship on a social network," Durand-Baissas said. "If (Facebook) can't see the difference between an artistic masterpiece and a pornographic image, we in France (can)."

The case is an illustration of the tricky line that social media sites walk globally when trying to police explicit content.

"It's another hole in the fabric, at least in Europe, when it comes to users' rights running counter to the way these companies operate in the U.S.," said Steve Jones, a communications professor at the University of Illinois at Chicago.

"Social networks are going to have to be much more careful about how they interact with users and how they summarily make decisions about those users' accounts," he said.

Facebook did not return a request for comment. It has never provided any explanation for the suspended account.

The social network's "Community Standards" page, which Facebook revised in March 2015 to provide "more detail and clarity," states: "We restrict the display of nudity because some audiences within our global community may be sensitive to this type of content — particularly because of their cultural background or age."

But Facebook's policy — revised well after Durand-Baissas' suspension — also now appears to allow postings such as a photo of the Courbet painting. Facebook's standards page explicitly states: "We also allow photographs of paintings, sculptures, and other art that depicts nude figures."

Facebook's nudity policy has not yet been aired in French court. So far, Facebook lawyers have argued that under its terms of service, lawsuits like the one filed by Durand-Baissas could only be heard by a specific court in California, where Facebook has its headquarters. The social network also argued that French consumer-rights law doesn't apply to its users in that country because its worldwide service is free.

The Paris appeals court dismissed those arguments. The ruling could set a legal precedent in France, where Facebook has more than 30 million regular users. It can be appealed to France's highest court.

The appeals court said the small clause included in Facebook's terms and conditions requiring any worldwide lawsuits to be heard by the Santa Clara court is "unfair" and excessive. In addition, the judges said the terms and conditions contract signed before creating a Facebook account does fall under consumer-rights law in France.

"This is a great satisfaction and a great victory after five years of legal action," said lawyer Stephane Cottineau, who represents Durand-Baissas. Cottineau said the appellate ruling sends a message to all "Web giants that they will have now to answer for their possible faults in French courts."

"On one hand, Facebook shows a total permissiveness regarding violence and ideas conveyed on the social network. And on the other hand, (it) shows an extreme prudishness regarding the body and nudity," he said.

The French government has lobbied Silicon Valley tech giants to take down violent extremist material, notably after deadly terrorist attacks in Paris last year.

Facebook has had a tough week in France.

France's independent privacy watchdog said Facebook is breaching users' privacy by tracking and using their personal data and set a three-month deadline to change practices before Facebook is fined. And the government's anti-fraud agency issued a formal notice giving the company two months to comply with French data protection laws or risk sanctions. It notably accused Facebook of removing content or information posted by users without consultation.

Facebook's policy on nudity in practice

Breastfeeding: In 2009, 11,000 people staged a virtual "nurse-in," replacing their profile photos with nursing ones. About two years ago the policy wording changed to specifically allow photos of nursing mothers.

Mastectomy photos: In 2013, more than 20,000 people signed an online petition urging Facebook not to ban mastectomy images. Facebook responded with an official policy that permits the vast majority of mastectomy photos. Still, many mastectomy photos are flagged by other users and removed by Facebook.

Birth photography: In 2011, Facebook apologized for disabling the account of an Iowa photographer who posted shots of a friend and her newborn moments after birth; the images partially showed her friend's breasts, but not her nipples. Facebook emailed the photographer, Laura Eckert, to apologize and say that disabling the account had been in error.

Artwork: Facebook's policy allows "photographs of paintings, sculptures, and other art that depicts nude figures." Yet many users have run into trouble after posting art containing nudity. Frederic Durand-Baissas isn't the only one whose account had been deactivated after posting artwork with nudity.— AP

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