Institute of European Media Law
In rulings of 29 July 2021 (III ZR 179/20 and III ZR 192/20), the Bundesgerichtshof (Federal Supreme Court – BGH) decided that Facebook’s terms of business, governing the deletion of users’ posts and the blocking of accounts when its internal standards had been breached, were ineffective. This was especially the case if Facebook did not agree to inform users about the removal of their posts, at least in retrospect, and about the intention to block their accounts in advance, indicate the reason for doing so, and grant them the opportunity to respond and request a new decision. Users whose posts have been deleted or whose accounts have been blocked in accordance with these terms of business are therefore entitled to have their accounts reactivated and, where appropriate, to injunctive relief against future blocking of their accounts and deletion of their posts.
With regard to social networks’ practice of taking down individual posts, there has been discussion for some time now as to whether and to what extent companies can and/or should be obliged to take reasonable account of users’ fundamental rights. Although the BGH ruling does not assume that a private company has a constitutional obligation in this respect, it addresses the issue from the angle of general German civil law provisions in which the imprecise definition of legal concepts means it is possible or even necessary to take fundamental rights into consideration. The BGH lays down concrete guidelines on the protection mechanisms that must be in place in order to sufficiently take into account freedom of expression, without unreasonably harming the interests of social network operators. The proposed information obligations and complaint mechanisms are not a new idea: such systems are already provided for in the German Netzwerkdurchsetzungsgesetz (Network Enforcement Act – NetzDG), on the basis of which Facebook is required to take down criminally unlawful content within certain deadlines and, at the same time, take legally established precautions to protect freedom of expression. However, the NetzDG only concerns certain types of illegal content, which are not necessarily congruent with the definition of hate speech contained in Facebook’s community standards. According to the BGH’s decision, similar protection must, in future, also apply to content of this nature that does not exceed the threshold of libel or incitement of the people and that is therefore not covered by the NetzDG. This is consistent with developments at EU level, where the proposed Digital Services Act, for example, includes plans to introduce corresponding transparency and information obligations, as well as complaint mechanisms, for online platforms.
- Pressemitteilung des BGH Nr. 149/2021
- Federal Supreme Court press release no. 149/2021
This article has been published in IRIS Legal Observations of the European Audiovisual Observatory.