On 24 August 2018, the Munich Court of Appeal (“Court”) issued a preliminary injunction against Facebook that prohibits Facebook from deleting a certain user’s post (docket no. 18 W 1294/18, available in German here).

Facts of the case

The claimant is a Facebook user who had taken part in a discussion on the Facebook page of a renowned German news journal on Austria’s announcement of border controls. In the course of a controversial discussion, in particular with another Facebook user, the claimant posted a quotation of the German poet Wilhelm Busch, combined with a provocative statement against another Facebook user:

Original German wording English convenience translation: “… Gar sehr verzwickt ist diese Welt, mich wundert’s daß sie wem gefällt. Wilhelm Busch (1832–1908) Wusste bereits Wilhelm Busch 1832 zu sagen:-D Ich kann mich argumentativ leider nicht mehr mit Ihnen messen, Sie sind unbewaffnet und das wäre nicht besonders fair von mir.” “… This world is very tricky, I wonder who likes it. Wilhelm Busch (1832–1908) Wilhelm Busch already knew in 1832 to say :-D Unfortunately, I can no longer compete with you argumentatively, you are unarmed and that wouldn’t be particularly fair of me.”

Facebook deleted the claimant’s post.

The decision

The claimant applied for a preliminary injunction before the Munich District Court II (Landgericht München II), which dismissed the case. The claimant appealed this decision before the Court, which set aside the first instance decision and prohibited Facebook from deleting the post.

The Court invalidated the clause in Facebook’s terms of service of that time, which granted Facebook the unilateral right to delete posts in cases where Facebook regards such posts to be in breach of its policies at its sole discretion. In the view of the Court, Facebook’s unilateral right to delete posts would constitute an unreasonable disadvantage to Facebook users. The background is that German law sets forth an obligation for each party to a contract to respect the interests of the other party, in Section 241(2) of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

In the view of the Court, Facebook is a marketplace of ideas for its users. Accordingly, Facebook’s obligation to respect users’ interests includes the obligation to respect their constitutional fundamental right of freedom of speech. Freedom of speech applies not only with regard to governments and public authorities, but also, indirectly, to individuals and companies. In essence, a comprehensive interpretation of the post, including the context in which it was made, needs to be carried out. The Court concluded that the post, which was given in the context of a personal discussion with the other user, qualified as an “allegation of lack of judgment”, i.e., that the other user shall not be able to base their opinion on objective grounds. In the Court’s view, such an allegation did not constitute a direct attack on people based on race, ethnicity, national origin, religious affiliation, sexual orientation, gender identity, or serious disease or disability, which would constitute hate speech according to Facebook’s own definition.

Finally, the Court held that Facebook cannot rely on the provisions of the new German Hate Speech Act (Netzwerkdurchsetzungsgesetz – NetzDG). The Court took the view that the post would not qualify as “unlawful content” within the meaning of the NetzDG. For more information on the NetzDG, please see our previous blog.

It remains to be seen whether Facebook will insist on main proceedings in order to obtain a final decision.

Conclusion

This case highlights the dilemma that providers of social media networks may find themselves in. On the one hand, under the NetzDG social media networks are required to take down unlawful content immediately. On the other hand, over-deleting may constitute a factual basis for legal claims of the relevant users. This is a major point of criticism against the NetzDG.