Germany’s federal court declares Facebook’s hate speech curbs to be in breach of citizens’ constitutional rights

Well, well, well, the BGH has decided in something that our Twitter account was also dealt, being blocked from German Ministries and the Labor Agency.

We became aware of the BGH decision a week ago. The excellent UK Human Rights Blog was faster in translation. Small wonder, being freed from the shackles of the EU is liberating and invigorating. So we take the liberty and quote their post in full before we inform the concerned ministries and the BA to, perhaps, consider lifting their blockings. Here goes the UK HR Blog and we extend our gratitude.

Germany’s federal court declares Facebook’s hate speech curbs to be in breach of citizens’ constitutional rights

The Federal Court of Justice in Germany (the Bundesgerichtshof, or BGH) has ruled against the social network provider that deleted posts and suspended accounts amid allegations of “hate speech”.

The ruling was handed down on the 29th of July (Bundesgerichtshof, Urteile vom 29. Juli 2021 – III ZR 179/20 und III ZR 192/20) and at the time of writing this post, the full judgment had not been published. The following summary is based upon the Bundesgerichtshof’s press release. NB the quotes from the plaintiff’s Facebook entries are in the judgment, i.e. the public domain, in other words no offence is intended by repeating them here.

Judgments of July 29, 2021 – III ZR 179/20 and III ZR 192/20

The III Civil Senate of the German Federal Court of Justice has ruled that Facebook’s terms and conditions of April 19, 2018 for the deletion of user posts and account blocking in the event of violations of the communication standards set out in the terms and conditions are invalid. This was because the defendant provider had not undertaken to inform the user about the removal of his post at least subsequently and about an intended blocking of his user account in advance, had not informed them of the reason for this and had not given them an opportunity to respond with a subsequent new decision. If, due to the invalid terms and conditions of the provider’s contract, a user’s contribution was deleted and their account temporarily subject to a partial blocking, the user should be able to claim the activation of the deleted contribution and, an undertaking that there would be no further account blocking or deletion of the contribution upon its renewed posting.

Background facts

The parties disputed 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 maintained a user account for a worldwide social network operated by the defendant’s parent company, whose provider and contractual partner for users based in Germany was the defendant. They claimed against the defendant – to the extent still relevant for the appeal proceedings – in respect of activation of the posts published by them on the network and deleted by the defendant, for an injunction against renewed blocking of their user accounts and deletion of their posts, and – in one of the appeal proceedings – for information about a company commissioned to implement the account blocking.

According to the network’s terms of use in the version applicable since April 19, 2018, the “Community Standards” may not be violated. These prohibit “hate speech” – defined in more detail there.

In the proceedings III ZR 179/20, the plaintiff posted the following contribution:

In contrast to [the assassinations committed by so-called citizens of the Reich] the murders by Islamic immigrants, which one has seen, have no consequences. German people are 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 to see a crackdown by the Office for the Protection of the Constitution.

In case III ZR 192/20, the plaintiff commented on a third party’s post containing a video in which a person with a migrant background refuses to be controlled 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 IN THE POCKET OF THE TAXPAYER FOREVER … THESE GOLDIGGERS CAN ONLY MURDER … STEAL … RANDALIZE … AND VERY IMPORTANTLY … NEVER WORK.

The defendant deleted these statements in August 2018 because they violated the ban on “hate speech”. It temporarily blocked the user accounts so that the plaintiffs could not post anything, comment on anything, or use the Messenger function during this time. In their lawsuits, the plaintiffs claimed that the defendant was not entitled to delete their posts and block their user accounts.

Proceedings in the courts

In proceedings III ZR 179/20, the Regional Court dismissed the action. The Court of Appeals dismissed the plaintiff’s appeal against this ruling.

In proceedings III ZR 192/20, the Regional Court ordered the defendant to refrain from charging the plaintiff for posting 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 in the taxpayer’s pocket forever.

It also prohibited the defend from reblocking or deleting the post, if the post referred to people who resist a policewoman’s order on the basis that their ideology forbade them from letting women order them about. In all other respects, it dismissed the action. The plaintiff’s appeal was unsuccessful. On appeal by the defendant, the Higher Regional Court amended the judgment of the Regional Court and dismissed the action in its entirety.

The decision of the Federal Court of Justice (Bundesgerichtshof)

The Third Civil Senate of the Federal Court of Justice partially overturned the judgments on appeal and – in proceedings III ZR 192/20, rejecting the appeal in all other respects – ordered the defendant to reinstate the plaintiff’s posts that it had deleted. In addition, in proceedings III ZR 179/20, it ordered the defendant to refrain from blocking the plaintiff from posting her contribution again or from deleting the contribution.

The defendant was not entitled to delete the plaintiff’s posts and block her user accounts on the basis of its terms of use and community standards. It is true that the amended Terms of Use of the Defendant, as amended on April 19, 2018, were effectively incorporated into the contractual relationship of the Parties by the Plaintiffs clicking on the corresponding button labeled “I agree” in response to the Defendant’s notice of the intended amendment, which was sent to them in the form of a pop-up window. However, the reservations granted in the defendant’s amended terms of use regarding the removal of user contributions and the blocking of user accounts were invalid pursuant to Section 307 (1) sentence 1 of the German Civil Code (BGB) because they unreasonably disadvantage the users of the network contrary to the requirements of good faith. [my italics]

When examining whether a clause is unreasonable within the meaning of Section 307 (1) sentence 1 BGB, a comprehensive assessment and weighing of the mutual interests is required. In the present case, the conflicting fundamental rights of the parties – on the part of the users, the freedom of expression under Article 5 (1) sentence 1 of the German Basic Law, and on the part of the defendant, the freedom to exercise a profession under Article 12 (1) sentence 1 of the German Basic Law – must be taken into account and balanced in such a way that they are as effective as possible for all parties. This balancing of interests shows that the defendant is in principle entitled to require the users of its network to comply with certain communication standards that go beyond the requirements of criminal law (e.g. insult, defamation or incitement of the people). It may reserve the right to remove posts and block the user account in question in the event of a breach of the communication standards.

However, in order to strike a balance between the conflicting fundamental rights in a manner that is in line with the interests of the parties, and thus to maintain reasonableness within the meaning of Section 307 (1) sentence 1 of the German Civil Code, the defendant must undertake in its terms and conditions to inform the user concerned at least retrospectively about the removal of a post and in advance about an intended blocking of his user account, to inform him of the reason for this and to give him an opportunity to respond, followed by a new decision.

The removal and blocking reservations in the defendant’s terms and conditions did not meet these requirements. The defendant was therefore not entitled to delete the plaintiffs’ posts and block their user accounts. It was ordered restore the posts and refrain from blocking the user accounts and deleting the posts when they are posted again.

Comment

Facebook’s initial reaction was to welcome the BGH’s finding that the network was in principle entitled to remove content according to its own guidelines and to block the user accounts in question. The Telegraph online quotes a spokesperson for Facebook: “We do not tolerate hate speech and are committed to removing inadmissible content from Facebook”. He added that the BGH decision would be “carefully examined to ensure that we can continue to take effective action against hate speech in Germany.” The lawyer representing Facebook had called the court’s requirement for a prior hearing “completely impractical.” Every day, he said, there are hundreds of cases, and each new insult encourages like-minded people.

It will be interesting to see how in practice Facebook responds to this ruling, as its moderation system relies heavily on AI thus removing users’ comments without reason.

. . . . . . . . .

Here is a thread on Twitter about the decision.

So what are you at the BMAS, the BMFSFJ and the BA thinking about this? You guys feel addressed? You feel unconcerned? Stay silent? As it says in the Twitter thread:

1. Facebook has to inform users (at least) AFTER blocking/delete a piece of content, and BEFORE they intend to deplatform someone. Why? Because of a weighing of the different rights involved.

2. A terms of service clause that does not respect the rights of both parties is unreasonable. When examining whether a clause is unreasonable within the meaning of Section 307 (1) sentence 1 BGB, a comprehensive assessment and weighing of the mutual interests is required.

3. In the present case, the conflicting fundamental rights of the parties – on the part of the users, the freedom of expression under Article 5 (1) sentence 1 of the German Basic Law, and on the part of the defendant, above all, the freedom to exercise a profession under Article 12

Ball’s in your court.

Dad, what is “hate speech”?