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Success for brand owners: from now on social media platforms such as Facebook may be required to actively take action against evidently sketchy advertisements for counterfeit goods

Platforms such as Facebook and Instagram contain more and more advertisements. Some of these advertisements come from parties that offer counterfeit goods according to a fixed pattern. Recently, the Preliminary Judge of the District Court of Amsterdam ruled that Facebook is acting unlawfully towards Tommy Hilfiger by allowing advertisements (which meet certain specific characteristics) promoting counterfeit goods on its Facebook and Instagram platforms.

Normally, Facebook and Instagram rely on the safe harbor clause in the Dutch Civil Code for neutral intermediaries / hosting providers, but according to the court, that does not apply. Facebook and Instagram have an active role in placing the advertisements through their advertising policies (they check the content prior to publication). It is therefore reasonable that they also have to take responsibility to act actively against advertisements that clearly, according to a fixed pattern, advertise counterfeit products. Facebook and Instagram may be required to take appropriate measures to prevent placement of these advertisements. This does not mean that Facebook and Instagram commit infringements themselves if they omit to take measures. However, in that case an action can be brought against the platforms on the basis of an unlawful act.

In this case, it was made plausible that the measures taken by Facebook and Instagram were insufficiently effective. After all, the complained advertisements kept popping up again. This has led the Judge to order Facebook and Instagram to stop any unlawful actions – that is, to stop allowing advertisements with the characteristics listed below. The advertisements referred to contain the word ‘Tommy Hilfiger’ and have the following specific characteristics:

  • Low prices or big discounts;
  • Combination of 3 or 4 images;
  • The website to which the advertisement clicks is different from the website mentioned in the advertisement;
  • The description is in poor English or irrelevant for the articles offered;
  • Indication of free delivery;
  • Advertisers are Facebook ‘community’ pages that were created shortly before placing the advertisement;

It is clear that platforms such as Facebook and Instagram can no longer afford to adopt a wait-and-see attitude regarding the removal and prevention of evidently sketchy advertisements for counterfeit goods with a fixed pattern. With this ruling in hand, other brand owners confronted with similar advertisements may also be able to require Facebook and Instagram to stop placing those ads.

Lisanne Steenbergen, Moïra Truijens & Daniël Haije

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