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The French High Court’s March 5, 2015 ruling re: Facebook’s shutting down of Frédéric Durand-Baissas’ account after he posted a photograph of L’Origine du Monde, an 1866 master painting by Gustave Courbet (1819-1877) that is displayed in Musée d’Orsay, Paris, France marks a significant victory in the battle against censorship.
Facebook’s arguments that Mr. Durand-Baissas was not protected by French consumer rights since their service is free and his account was opened “on his own initiative,” the painting was “too offensive,” as well as their condescending claim – “French justice was not competent to handle the case”1 were rightly rejected.
If the painting is deemed worthy to display in a prestigious museum and can be viewed by people of all ages including children, it is anything but “too offensive.” It is also not pornographic since based on its title – the artist’s intent was to illustrate his view on the origination of life rather than depict erotic behavior to elicit sexual arousal. For these reasons, a public domain image of L’Origine du Monde is included in this article.
Facebook’s arguments that Mr. Durand-Baissas was not protected by French consumer rights since their service is free and his account was opened “on his own initiative,” the painting was “too offensive,” as well as their condescending claim – “French justice was not competent to handle the case”1 were rightly rejected.
If the painting is deemed worthy to display in a prestigious museum and can be viewed by people of all ages including children, it is anything but “too offensive.” It is also not pornographic since based on its title – the artist’s intent was to illustrate his view on the origination of life rather than depict erotic behavior to elicit sexual arousal. For these reasons, a public domain image of L’Origine du Monde is included in this article.
In any event, when the French High Court declared the stipulation in Facebook’s user agreement that “only a California court can handle disputes” to be “abusive,” despite Durand Baissas’ initial and I must say coerced acceptance of the terms since he had no other choice when opening his account – it rendered every user agreement that narrowly confines jurisdiction to a specified locale as null and void and recognized the fact that acceptance of many user agreements is anything but voluntary.
Consequently, photographers and artists may aggrieve acts of censorship in courts of their choice especially if making claims in specified courts is cost prohibitive and places undue hardship (e.g. travel, lodging) on the plaintiff.
To expand on this, the laws of other countries may be applied during censorship disputes – thus if an Internet provider censors material based on the national laws of its registered domain, photographers and artists may challenge such censorship based on the laws of their country of residence if service is provided to citizens of their country and their respective country’s laws are more liberal and accommodating to free expression (pictures and words).
Furthermore, considering that Facebook is a free service, users who utilize a paid service may even have greater rights with regard to free expression. Therefore based on this precedent setting ruling it no longer matters who the Internet provider is – and this includes Ipernity – free expression may not be stifled based on one country’s laws or invalid jurisdiction clauses that one has no choice but to accept in order to establish an account and enjoy services. To conclude, if a photographer takes pictures within a country that are legal as governed by its laws they may post them with full knowledge they have legal rights they may exercise if necessary.
Consequently, photographers and artists may aggrieve acts of censorship in courts of their choice especially if making claims in specified courts is cost prohibitive and places undue hardship (e.g. travel, lodging) on the plaintiff.
To expand on this, the laws of other countries may be applied during censorship disputes – thus if an Internet provider censors material based on the national laws of its registered domain, photographers and artists may challenge such censorship based on the laws of their country of residence if service is provided to citizens of their country and their respective country’s laws are more liberal and accommodating to free expression (pictures and words).
Furthermore, considering that Facebook is a free service, users who utilize a paid service may even have greater rights with regard to free expression. Therefore based on this precedent setting ruling it no longer matters who the Internet provider is – and this includes Ipernity – free expression may not be stifled based on one country’s laws or invalid jurisdiction clauses that one has no choice but to accept in order to establish an account and enjoy services. To conclude, if a photographer takes pictures within a country that are legal as governed by its laws they may post them with full knowledge they have legal rights they may exercise if necessary.
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1 Henry Samuel. Facebook can be sued if it tries to censor content, says French court. 6 March 2015. www.telegraph.co.uk/news/worldnews/europe/france/11453537/Facebook-can-be-sued-if-it-tries-to-censor-content-says-French-court.html
9 comments
Don Sutherland said:
William Sutherland said:
HelenaPF said:
It's abusive really when everybody even children can watch this painting in a famous museum and even on walls during a long time!
l understand about porno but nature is nature, no censorship with it!!!!! l'm for freedom, for where is the justice within?
William Sutherland said:
With re: to this article, I can see no violations with Ipernity's contract for the following reasons:
1. Gustave Courbet was a renown painter who led the 19th century realist movement through rejection of prevailing conventionalism. His works inspired the impressionist and cubist movements, which included but is not limited to the greats of Picasso and Monet. For this reason alone, even if one of his works of art aren't suitable to everyone's tastes (I wouldn't hang it on my wall!), a prestigious museum would be remiss not to display it.
2. I included a small image of L'Origine du Monde for educational purposes so that people can see the painting at the center of the concluded court case. Not only does this constitute fair use, but in this case there are no questions about copyright issues since it is in the public domain (as stated when clicking on the image) in Wikipedia.
3. This painting, even though provocative, does NOT fit the definition of pornography. The French High Court in its ruling affirmed this. Thus no violation of Ipernity's rules here.
4. Artistic nudes whether by Michelangelo, Picasso, Francisco de Goya -- to name just three, have always been a part of the artistic mainstream for public view. Therefore even though L'Origine du Monde isn't exactly to my tastes (I wouldn't hang it on my walls) -- I have no right to discriminate against it and demand its removal from the artistic mainstream especially since many erotic paintings (e.g. Gustave Klimt -- Frau bei der Selbstbefriedigung, Katsushika Hokusai -- The Dream of the Fisherman's Wife, Édouard Manet Olympia) are part of this mainstream viewable by the public without age restriction.
The Dream of the Fisherman's Wife
Last, since it was the French High Court that made its decision, French law is supportive of this article and the included educational public domain image. No need to apply U.S. law here.
William Sutherland said:
William Sutherland said:
William Sutherland said:
raingirl said:
William Sutherland said: