Topless on Instagram and Facebook?

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Topless are allowed on Instagram and Facebook…as long as they’re male. All other breasts are banned from the network. Reason: sex exhibition. Meta’s supervisory board wants to change this discrimination. All breasts or none, but only gender discrimination. What will the Court of Cassation, which has surprisingly retrograde case law on this issue, think about this?

Meta Review Board

The Meta Supervisory Board is unfortunately very little known. However, this is one of the good things that social networking has to offer.

It was created to help Meta answer the most complex questions about free expression online: what content to remove, what content to leave online, and why?

Its purpose is to promote freedom of expression by making informed and independent decisions about content posted on Facebook and Instagram, as well as making recommendations about Facebook’s content policy. Therefore, the board has two aspects: it acts as a reference for the decisions made by the network; it’s also a think tank that can ask Facebook to change its moderation rules.

The board’s decisions to uphold or overturn Facebook’s content decisions are binding, meaning Facebook is committed to enforcing them unless they violate the law.

The Council’s website can be accessed here.

“Transgender nudity” decisions

On January 17, 2023, the Review Board reversed Meta’s initial decisions to remove two Instagram posts depicting topless transgender and non-binary people. It also recommends that Meta amend its Community Standard on adult nudity and sexual activity so that it is governed by clear criteria that respect international human rights standards.

The facts

Two separate pieces of content were shared by the same Instagram account, one in 2021 and the other in 2022. The account is run by a US-based couple who identify as transgender and non-binary. In both posts, there are pictures of the couple with their breasts bare and their nipples covered.

The photo captions mention transgender health services and say that one of the couple will soon have a breast augmentation (gender-affirming surgery to create a flatter chest) and that the couple have started fundraising to fund it.

After a series of warnings from Meta’s automated systems and user reports, Meta removed these two posts for violating the Community Standard for Sexual Referrals because they contained breasts and a link to a fundraising page.

Users appealed to the Meta and then to the Council.

Key observations

The Review Board believes that removing these posts is inconsistent with Meta’s Community Standards, values, and human rights commitments.

For the board, these cases also highlight fundamental problems with Meta’s policies: Meta’s internal guidelines for moderators are stricter than the rules or go beyond what was intended when the rules were written, and the network is causing content to be removed incorrectly.

The Council notes that the Community Standard for Adult Nudity and Sexual Activity prohibits it “Images containing female nipples, except in special cases such as breastfeeding and gender confirmation surgery”.

For the council, “This policy is based on a binary view of gender and the difference between male and female bodies. Such an approach ignores how the rules apply to intersex, non-binary, and transgender people, and requires review teams to make quick and subjective gender and sexuality assessments, which is impractical when it comes to moderating content at scale.

Limitations and exceptions to the rules for female nipples are many and confusing, especially when they apply to transgender and non-binary people. (…) These exceptions are often confusing and unclear. In some contexts, for example, moderators must evaluate the extent and nature of visible scars to determine whether certain exceptions apply. The lack of clarity inherent in this policy creates uncertainty for users and review teams and makes it unenforceable in practice. »

Beyond the transgender question, the Board is also concerned about the fundamental difference on which the Community Standard is based: why is there a different rule for male breasts than for female breasts? The Council believes that Meta should do this “Change the approach to managing nudity on their platforms by establishing clear criteria for governing mature nudity and sexual activity policies that ensure all users are treated in a manner consistent with relevant human rights standards. It should also consider whether adult nudity and sexuality policies protect against non-consensual sharing of images and whether other policies need to be strengthened in this regard.”.

The decision therefore requires “Set clear, objective and rights-respecting criteria for regulating the Community Standard on adult nudity and sexual activity so that all people are treated in accordance with international human rights standards. Meta should first conduct a comprehensive assessment of the human rights impact of such change, involving various stakeholders, and create a plan to address any identified harms. »

The decision can be found here.

The Court of Cassation is tougher than Facebook?

French law punishes sexual intercourse under article 222-32 of the Penal Code: ” A sexual exhibition in a public place in front of others is punishable by one year in prison and a fine of 15,000 euros..

In the famous Femen case, an activist entered the Grevin Museum, the room of the heads of state, and exposed his chest in front of the statue of the Russian president, writing anti-Putin.

In 2018, the Court of Cassation issued its first verdict. Although the appellate judge considered that there was no sexual intercourse, taking into account the context, the Court of Cassation held that regardless of the reasons advanced by the accused, without affecting the constituent elements of the crime, the court noted that he voluntarily exhibited his chest in a museum, in a place open to the public. the meaning and scope of the text mentioned above was not taken into account in the application”.

The Court of Appeal resists: the woman’s breast refuses to see the sexual message that appears in these circumstances. On the contrary, he notes: “The Followers of the so-called “radical feminism” movement “Femen” expose their bare breasts with political messages, a form of militant activism that is analyzed as a rejection of the sexualization and re-appropriation of the female body. by the militants, by exposing her nakedness”.

The case ends up again in the Court of Cassation, which confirms its first message: the display of a woman’s breast, even if it is the intention expressed by her, falls within the provisions of the crime provided for in article 222-32 of the Criminal Code. the author is deprived of any sexual relations.

However, the appeal, in the name of proportionality, upholds the decision: the behavior of a bare-chested feminist activist with a political message inscribed on a wax statue of a country’s leader in a museum. , constitutes the crime of sexual display, the defendant’s acquittal does not constitute censorship because the conduct is part of the process of political protest and, given the nature and context of the act in question, its prosecution would constitute a disproportionate crime. interference with the exercise of freedom of expression.


We have already written in a previous column all the evils we think about the retrograde and discriminatory case law of the Court of Cassation.

Deciding that a woman’s breast, regardless of context, is an element of the sexual order, the display of which creates the application of criminal law, seems to us not only retrograde, but contrary to penal law. Breasts can certainly be gendered in the same way as the neck, thighs, stomach, back or legs, but the Court of Cassation goes further: a woman makes her breast a woman. it is inherently sexual, regardless of context. It seems to us that the text of the punishment, on the contrary, separately provides for checking the presence of the material and moral elements of the crime, which means checking whether they have been demonstrated in the mentioned case. becomes sexual.

The decision prompts a second criticism. By turning a woman’s breast into a sexual element regardless of context, the Court of Cassation deprives half of humanity of expressing itself using this communication vector. Let’s imagine for a moment that a shirtless man does exactly the same thing. Will he be punished for having sex? To ask a question is to answer it. Is a bare torso “sexy” if it’s only for women? How can one justify the necessity and proportionality of an intervention that blames women for using their breasts to express themselves, just because they are women?

The decision leads to a third criticism. What is it to consider the female breast inherently sexual without drawing the same conclusion as to the male breast? Does this approach not view women as the result of a legacy established by men? Is it consistent with the principle of equality between men and women?

This is what the Meta Review Board decision rightly condemned: all breasts or none, but no discrimination based solely on sex.

Learn more by reading our analysis of the Femen case.

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