Romania's High Court of Cassation and Justice (HCCJ) has recently affirmed a lower court's decision that personal Facebook pages are considered public space, even if they are accessible to only a small group of friends.

In early 2012, during protests against the government austerity program, Nicolae Mircea Munteanu, the former director of the Office of the Prefect of Targu Mures, posted on his personal Facebook page the following message: "Arbeit macht frei – this is what protesters have to understand.”

In February 2012, the National Council for Combating Discrimination (NCCD) took action and fined Mr. Munteanu 1,000 lei (225 euro), stating that “his act constituted nationalist propaganda, being detrimental to human dignity and creating a degrading, humiliating and offensive atmosphere for those belonging to the protesting group.”

Facebook goes public

Mr. Munteanu contested the fine in court, alleging, among other things, that his Facebook page constitutes private and not public space. The Targu Mures court rejected this statement in its decision from January 2013:

“The use of the 'Arbeit macht frei' slogan in a public space or in a publicly accessible space, when expressing an opinion on a certain category of people (protesters), causes with no doubt an association with feelings of contempt, repudiation, intolerance, and therefore the applicant cannot claim that he acted without guilt. ...[I]t cannot be held that by posting the message there was no intent to violate human dignity as long as [...] the use of this slogan, associated in the popular consciousness with the horrors of Nazism, proves his intolerance toward the civil rights of the protesters, with the consequence of violating their dignity.

"The Facebook social network cannot be equivalent, in terms of controlling the sent messages, to an email box. His personal Facebook profile, even if accessible only to his friends, so to a small group of people, remains public, as any 'friend' can distribute the information posted by the proprietor of the page, a possibility the complainant was aware of.”

Precautions are needed

This decision has now been affirmed by the HCCJ on appeal, meaning the determination that Facebook pages are public space is now the legal reality in Romania.

"There are some implications in criminal law that should make us think about what we post on Facebook. Precautions are needed because we can be held accountable. The law says that if more than two people are harmed by an assertion of one's activity on websites for socializing, we are already discussing not private, but public space," said Diana Hatneanu, a lawyer and specialist in human rights and representative of the Association for the Defense of Human Rights in Romania - Helsinki Committee (APADOR-CH). "There is no private space on the Internet, therefore we must refrain from specific comments."