Man from Lelystad loses lawsuit against Microsoft about banning for photos he received unsolicited

You will be sent an unsolicited picture unsolicited, after which Microsoft will ban you from all its services for life. This happened to entrepreneur Pouwel Slurink from Lelystad, who brought preliminary relief proceedings against the American tech company. He wants to get his files back and use his Microsoft account again. On Friday, the judge rejected his demands.

The Internet is teeming with stories of people losing access to their Microsoft account. They can no longer use Windows on their computer, they lose access to their files in the cloud service One Drive, they cannot email with Outlook, Skype, Xbox, meet in Teams, or use Office. The Consumers’ Association dedicated there a special page and found hundreds of similar stories on the internet.

“I have been banned to a digital Siberia,” says Slurink. “Microsoft has gone deep into digital life. It would have less impact on my daily life if I were denied access to all city parks in Limburg. ” He had stored years of personal files and photos in the cloud service One Drive. Photos of travel, administration. Without backing up on his computer. The files are still on Microsoft’s servers, but Slurink is not allowed to access them.

Can the American company do this? In the case of Slurink, the court in Lelystad says: yes, that is allowed. Slurink has violated the service agreement, and the associated consequences – loss of access to his data and a lifelong ban – the judge considers proportionate.

Only after he filed a lawsuit did Microsoft reveal why he had lost his account: the company, with the help of appropriate software, had identified a photo in its One Drive account as child pornography.

Slurink was of no evil newust. He received the photo – which is circulating on humor websites – in a WhatsApp group chat. Slurink has set up his phone so that files received via WhatsApp are automatically synchronized with One Drive. This is how the photo ended up in Microsoft’s cloud storage. “I have not done anything with it,” says Slurink. “I have not responded to it and I have not shared it.”

The photo shows a man with a beer on the beach. Above that the text: “a photo of my grandfather (…) you can see me playing in the background”, followed by a smiley indicating irony. In the background, two naked children play on the beach in a pose that evokes an association with sex. A tasteless joke, Slurink admits. But child pornography?

According to the judge, the photo can be qualified as such. Even if only the suggestion It is aroused that the depicted children have sexual contact ”, according to European rules he falls under child pornography, the judge said.

Slurink contends that even if it concerns child pornography, he will still have received the photo unsolicited and not shared it. Why should he be penalized for having an acquaintance send him an indecent picture? In addition, Slurink points out that this action puts Microsoft at risk for all of its customers. After all, anyone can have the photo sent to you – for example by people who intend evil.

The judge finds that Microsoft has made it sufficiently plausible that Slurink did share the photo. He takes this aggravating circumstance into account in his decision.

Software is set to share

According to Microsoft, the software it uses to track child pornography, PhotoDNA, only checks photos that people share. Sharing can be: forwarding the photo via One Drive, or having a folder in One Drive containing the photo open to third parties. Has this proved that Slurink shared the photo, or could the software have affected the photo in a different way?

Microsoft’s lawyer seemed to acknowledge during the Lelystad hearing that there is no direct evidence for sharing: “We only know that PhotoDNA works when something is shared, but it is impossible to determine how it is shared.” The judge assumes that the software has worked correctly and says that it is up to Slurink to demonstrate that he did not share the photo. “That is the upside-down world,” says Slurink. “Microsoft accuses me without providing evidence and now I have to prove that I did not.”

Slurink is considering a substantive procedure. “I will not stop here. It is not true that people can just be penalized for receiving a photo. I am not only doing this for myself, but also for anyone who may have to deal with this in the future. ”

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