Netherlands

[NL] Dutch Municipality’s suit against Twitter to remove conspiracy theory content 

IRIS 2022-10:1/11

Ronan Ó Fathaigh

Institute for Information Law (IViR)

On 4 October 2022, the District Court of The Hague (Rechtbank Den Haag) delivered an important judgment on whether online platforms can be ordered to remove harmful conspiracy theory content by a local government authority. Notably, the Court refused to order Twitter to remove conspiracy theory content that was “similar” to other content that had been ruled unlawful, finding that it would amount to an impermissible filtering obligation.

The case arose in early 2021, when a number of individuals spread a story through Twitter, on the “Bodegraven story”, (“het verhaal Bodegraven”), which was a conspiracy theory about the Dutch town of Bodegraven in west Netherlands. The individuals posted content claiming that the Municipality of Bodegraven was involved in the cover-up of a pedo-Satanic network in the town, where children were alleged to have been abused and killed. The conspiracy theory spread across online platforms, and resulted in numerous people regularly gathering at a cemetery in the town where children were said to be buried, and led to “unrest”. Indeed, the town’s Mayor was forced to issue an emergency order, limiting admittance at the cemetery to avoid a threat to public order. In June 2021, three individuals involved in posting the conspiracy theory content were convicted by the District Court of The Hague of incitement to violence and defamation over threats and allegations made against named officials. Crucially, in July 2021, the Court issued an order against the individuals prohibiting them from publishing content (i) identifying persons as perpetrators or involved in a pedo-Satanic network; (ii) locations in the town as the location of these crimes, (iii) calling on people to visit the town, and (iv) alleging the Municipality was involved in a cover-up.  

Following the judgments, the Municipality requested Twitter to remove all tweets posted by the convicted individuals that had been ruled unlawful by the Court, and also to remove all “identical information”. Twitter responded by closing the individuals accounts, meaning all content from those accounts would no longer be accessible. But Twitter refused to initiate any other measures to remove “identical information”, as it was “too general” and would impose an impermissible “filtering” obligation. The Municipality then initiated legal proceedings against Twitter, arguing the suspension of the accounts was insufficient.

In its judgment of 4 October 2022, the District Court first held that Twitter closing the accounts meant that all content from the accounts, and retweets, would be “permanently removed”, meaning that Twitter had removed the unlawful statements. As such, the main issue for the Court was whether Twitter can be ordered to do more than it has already done, and can it be obliged to remove content “similar” to the unlawful content already removed. In this regard, the Court noted the EU Court of Justice’s judgment in Glawischnig-Piesczek v. Facebook, where an order may be issued in certain circumstances for a platform to remove information that is identical to information identified as unlawful (see IRIS 2019-10/3). However, this only applies where it is “limited to specific data” and where the “hosting provider was not obliged to perform an autonomous assessment, so that it could use automated techniques and investigation methods”. Crucially, the District Court held that Glawischnig-Piesczek was not applicable to the information at issue, as the Bodegraven conspiracy theory concerns “many allegations and propositions”, and “cannot be easily captured in an algorithm”; and “if an automated technique were to be used, this would result in (too) much legal content being incorrectly blocked”. Further, Twitter cannot be ordered to remove tweets with “Bodegraven” and “child abuse”, as not every statement in which Bodegraven is combined with child abuse can simply be regarded as unlawful. Thus, the Court refused to order that Twitter was required to remove identical information to the content ruled unlawful, and stated that the Municipality should use notice-and-takedown mechanisms to have further unlawful content removed.