Court in summary proceedings: Facebook measures to prevent fake advertisements suffice

After John de Mol’s successful summary proceedings by the end of last year, Facebook was back in Court this month. The reason was misleading Bitcoin ads – which again were shown on the platform – using the photo of an AVROTROS presenter without permission. The presenter and AVROTROS claimed that Facebook was acting unlawfully against them. However, the Court in preliminary-relief proceedings held a different view. Media-law attorney Thomas van Vugt discusses this interesting judgement.

Misleading Bitcoin ads

A brief summary of the events preceding the proceedings: since October 2018, advertisements had been shown on Facebook associating Dutch celebrities, including John de Mol and, since August 2019, an AVROTROS presenter (from EenVandaag and others), with Bitcoin and Bitcoin investments. Their photos and names were used in the advertisements, in which these Dutch celebrities were portrayed as successful Bitcoin investors, without permission. Users who respond to such ads and pay amounts of money do not receive Bitcoins in return, but lose their money. A downright case of fraud.

Account deletion and blocking

Partly as a result of previous proceedings, Facebook has taken various measures to prevent the publication of such advertisements. First of all, every time it became aware of any fake advertisements, it removed them and blocked the corresponding account. It has also tightened up its verification system.

Cloaking: by-passing the verification system

However, the crooks behind the advertisements are constantly finding new ways to circumvent Facebook’s measures. ‘Cloaking’ is for example applied. This means that the landing page where the visitors end up differs from the innocent-looking page that is presented to (the systems of) Facebook.

Unlawful act

The Court in preliminary-relief proceedings first of all established that the relevant Bitcoin ads in which the name and photo of the presenter were used were unlawful. Facebook has effectively acknowledged this. However, the question is whether in this specific case Facebook has made every possible effort to exclude the advertisements. The Court considered that Facebook has made it sufficiently plausible that it took timely action to promptly remove the unlawful advertisements. It moreover expanded the possibilities for visitors to report these advertisements. After the summary proceedings against John de Mol, for instance, a new option was introduced, which can be used to report misleading advertisements, such as the ‘celeb-bait’ advertisements.

Adequate preventive measures?

The second question is whether Facebook is taking adequate preventive measures to prevent these ads from being shown on Facebook. In this case, the advertisements were related to ‘cloaking’. The Court pointed out that Facebook had taken numerous measures to combat cloaking. For example, an ‘anti-cloaking team’ has been set up and proceedings are started against companies that offer services to circumvent Facebook’s verification systems via cloaking. These measures are apparently having an effect, because hardly any new celeb-bait advertisements have surfaced in the last 6 months.

Amsterdam attorney in Facebook disputes

The Court in preliminary-relief proceedings held that Facebook, in the given circumstances, in which the fake ads do not systematically appear on its platforms, but occasionally seem to surface to circumvent its measures, has for the moment made every reasonably required effort to prevent the fake advertisements. For the moment, its conduct is therefore not considered unlawful in respect of the presenter and AVROTROS.