Facebook and other social networks are not allowed to simply delete hateful posts or block accounts
Judgments 29. July 2021 – III ZR 179/20 and III ZR 192/20
Der III. Civil Division of the Federal Court held, that the terms and conditions of Facebook dated 19. April 2018 for deleting user contributions and blocking accounts in the event of violations of the communication standards set out in the conditions are ineffective. In any case, this is true, because the defendant provider is not obliged to do so at the same time, to inform the user about the removal of his contribution at least retrospectively and about an intended blocking of his user account in advance, to inform him of the reason for this and to give him the opportunity to respond with a subsequent new decision. If a user's contribution was deleted due to the ineffective terms and conditions and his account was temporarily blocked, the user is entitled to the activation of the deleted post and, if necessary, to omit a new account lock and deletion of the post when it is posted again.
The case
The parties argue about the legality of a temporary partial blocking of the plaintiffs' Facebook user accounts and the deletion of their comments by the defendant.
The plaintiffs each maintain a user account for a global social network operated by the defendant's parent company, whose provider and contractual partner for users based in Germany is the defendant. You take the defendant – insofar as it is still of importance for the revision procedure – for the activation of the posts published by them in the network and deleted by the defendant, Failure to re-block their user accounts and delete their contributions as well – in one of the revision proceedings – for information about a company commissioned to block the account.
According to the terms of use of the network in the since 19. April 2018 current version may not violate the “Community standards” be violated. These prohibit one – defined there in more detail – “Hassrede”.
In the procedure III ZR 179/20 the plaintiff posted the following contribution:
“It's madness, can't remember an assassination attempt, the so-called. Have committed Reich Citizens. In contrast, the murders of Islamic immigrants, which one has observed, but couldn't do anything about it. German people are being criminalized, because they have a different view of their homeland than the regime. Migrants can murder and rape here and nobody cares! I would like the Office for the Protection of the Constitution to take action.”
In the procedure III ZR 192/20 the plaintiff commented on the contribution of a third party, which includes a video, in which a person with a migrant background refuses, to be checked by a policewoman, as follows:
“What are these people looking for here in our constitutional state ... no respect ... no respect for our laws ... no respect for women ... THEY WILL NEVER INTEGRATE HERE AND WILL BE ON YOUR POCKET FOREVER ... THESE GOLD PIECES CAN ONLY MURDER ... CLAW ... RANDAL ... AND VERY IMPORTANT ... NEVER WORK.”
The defendant deleted these statements in August 2018, since they violate the prohibition of “Hassrede” violated. She temporarily blocked the user accounts, so that the plaintiffs do not post anything during this time, couldn't comment on anything and couldn't use the messenger function. With their actions, the plaintiffs assert, the defendant was not justified, to delete their contributions and to block their user accounts.
The course of the process
In procedure III ZR 179/20 the regional court dismissed the action. The court of appeal rejected the plaintiff's appeal against this.
In procedure III ZR 192/20 the district court has sentenced the defendant to do so, to refrain, the plaintiff for setting the text:
“What are these people looking for in our constitutional state – no respect – no respect for our laws – no respect for women. They will never integrate here and will be on the taxpayer's pocket forever.”
to lock again or to delete the post, if the contribution relates to people, who defy the instruction of a policewoman with the argument, that they would not let a woman tell them anything. Otherwise it dismissed the action. The plaintiff's appeal was unsuccessful. On appeal by the defendant, the higher regional court amended the ruling of the regional court and dismissed the claim in its entirety.
With those from the Higher Regional Court – limited – approved revisions, the plaintiffs pursue their request for activation of the deleted posts, to omit a renewed account lock and deletion of the contributions as well – in procedure III ZR 192/20 – for information about a company commissioned to block the account.
The decision of the Bundesgerichtshof
Der III. The civil senate of the Federal Court of Justice partially overturned the appeal judgments and – in procedure III ZR 192/20 with the remainder of the appeal being rejected – convicted the defendant, to reactivate the plaintiff's deleted contributions. In addition, he has in procedure III ZR 179/20 convicted the defendant, to refrain, to block the applicant again from posting her contribution or to delete the contribution.
Due to its terms of use and community standards, the defendant was not entitled to delete the plaintiffs' contributions and block their user accounts. The amended terms of use of the defendant in the version of 19. April 2018 effectively included in the contractual relationship of the parties, that the plaintiffs respond to the notification of the proposed change from the defendant in the form of a pop-up window, with “I agree” clicked the button labeled. The reservations granted to the defendant in the amended terms of use regarding the removal of user contributions and the blocking of user accounts are, however, in accordance with § 307 Abs. 1 Set 1 BGB ineffective, because as a result, the users of the network are unreasonably disadvantaged, contrary to the requirements of good faith.
During the exam, whether a clause is inappropriate within the meaning of § 307 Abs. 1 Set 1 BGB is, a comprehensive assessment and weighing of mutual interests is required. Here are the conflicting fundamental rights of the parties – on the part of the user, the freedom of expression from Art. 5 Abs. 1 Set 1 GG, On the part of the defendant, above all, the freedom to exercise a profession under Art. 12 Abs. 1 Set 1 GG – to be recorded and to be brought into balance according to the principle of practical concordance, that they are as effective as possible for all parties involved. This consideration results, that the defendant is fundamentally justified, to stipulate that the users of your network comply with certain communication standards, those about the criminal law requirements (z.B. Beleidigung, Slander or sedition) go out. She may reserve the right to herself, to remove posts and block the user account in question in the event of a breach of the communication standards. For an interest-based balance of the conflicting basic rights and thus the preservation of appropriateness within the meaning of § 307 Abs. 1 Set 1 BGB is required, however, that the defendant undertakes in its terms and conditions, to inform the user concerned about the removal of a contribution at least retrospectively and about an intended blocking of his user account in advance, to inform him of the reason for this and to give him the opportunity to reply, which is followed by a new decision.
These requirements become the distance- and blocking reservations in the terms and conditions of the defendant do not do justice. The defendant was therefore not justified, delete the plaintiffs' contributions and block their user accounts. It must restore the posts and must refrain from blocking the user accounts and deleting the posts when they are posted again. The corresponding application for an injunction by the plaintiff failed in proceedings III ZR 192/20 however, on the peculiarities of the process there.
Courts:
Procedure III ZR 179/20:
LG Nürnberg-Fürth – Judgment of 14. October 2019 – 11 The 7080/18
OLG Nuremberg – Judgment of 4. August 2020 – 3 You 4039/19
and
Procedure III ZR 192/20:
LG Regensburg – Judgment of 27. August 2019 – 72 The 1943/18 COIN
OLG Nuremberg – Judgment of 4. August 2020 – 3 You 3641/19
are the relevant provisions
Art. 5 Abs. 1 Set 1 GG
Everybody has the right, his opinion in word, To express and distribute text and images freely and to teach oneself unhindered from generally accessible sources.
Art 12 Abs. 1 GG
All Germans have the right, profession, Free choice of workplace and training facility. The practice of the profession can be regulated by law or on the basis of a law.
§ 307 Abs. 1 BGB
Provisions in general terms and conditions are ineffective, if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. Inappropriate disadvantage can also result from this, that the provision is not clear and understandable.