A. Introduction
The Bundesgerichtshof (“BGH”), also known as the Federal Court of Justice in Germany, in its latest ruling held that Facebook’s hate speech policy is in breach of their citizens’ constitutional rights. This case was concerning Facebook’s terms and conditions (as of 19 April 2018), which allowed for the deletion of user posts and the blocking of user accounts if there was any violation of the communication standards that had been expressly laid out in their terms and conditions. The BGH held this to be invalid as Facebook had not informed the user about the removal of the post, the blocking of the user account and not provided ample opportunity for the user to respond or dispute such drastic actions by Facebook.
Although the full grounds of judgment have yet to be published, this case update will focus on the BGH’s summary of the judgment. As a disclaimer, all passages quoted are directly obtained from the BGH summary which is in the public domain. This article does not promote offensive or hate speech of any kind, and is intended purely for the purpose of academic discourse
B. Background Facts
This case originated from the temporary partial blocking of the Plaintiffs Facebook user accounts and the subsequent deletion of their comments by Facebook. The claim here was for (a) an activation of the posts they had published, and the comments deleted by Facebook, (b) an injunction against any renewal of the blocking of their user accounts and the deletion of their posts and (c) the information on the company that was commissioned to block their user accounts.
There were two main instances in dispute here. First, the Plaintiff had posted the following passage on their own Facebook account.
“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.”
The second instance in dispute, was where the Plaintiff had posed a comment on a video. This video was regarding a migrant who was refusing to be controlled by the policewoman. The comment that was posed by the Plaintiff is 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 Plaintiff’s post and the subsequent comment was deleted by Facebook as it was against their policies on hate speech. The Facebook guidelines on hate speech are clear and under the the rationale for their policy is as follows:
“We define hate speech as a direct attack against people on the basis of what we call protected characteristics: race, ethnicity, national origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity and serious disease. We define attacks as violent or dehumanising speech, harmful stereotypes, statements of inferiority, expressions of contempt, disgust or dismissal, cursing and calls for exclusion or segregation. We consider age a protected characteristic when referenced along with another protected characteristic. We also protect refugees, migrants, immigrants and asylum seekers from the most severe attacks, though we do allow commentary and criticism of immigration policies. Similarly, we provide some protections for characteristics such as occupation, when they’re referenced along with a protected characteristic.”
https://www.facebook.com/communitystandards/hate_speech
As the post and the comment posted by the Plaintiff were in clear violation of these guidelines, Facebook temporarily blocked the Plaintiff’s account, so they were not able to post, comment or even use the Messenger function during this time.
As such, the claim before ethe BGH was that Facebook was not entitled to delete the post and the comment, as well as temporarily block their Facebook user account.
C. Decision of the Courts
Regional Court
The proceedings were dismissed before the Regional Courts, and the court ordered Facebook to refrain from reprimanding the Plaintiff from the following text in their comment.
“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.”
The regional court also prohibited Facebook from re-blocking or even deleting the post.
BGH or the Federal Court of Justice
The BGH partially overturned the judgments on appeal and ordered Facebook to reinstate the posts and comments that had been deleted. Facebook was subsequently ordered to refrain from blocking the Plaintiff from re-posting the contributions and there were to refrain from deleting the contributions.
This decision was on the basis that it was invalid pursuant to Section 307 (1) sentence 1 of the German Civil Code (“BGB”) because they unreasonably disadvantaged the users of the network contrary to the requirements of good faith. This decision was premised on the fact that the Plaintiffs had to simply click the “I agree” button on the new Facebook Terms of Use (as of 19 April 2018) and not take any further steps, before being contractually bound.
In further examining the reasonableness of a clause within the meaning of Section 307 (1) sentence 1 BGB, the BGH held that a comprehensive assessment and the weighing of mutual interests is required. In the present case, the balance that must be found here is between freedom of expression – of the users – under Article 5 (1) sentence 1 of the German Basic Law and the freedom to exercise a profession – for Facebook – under Article 12 (1) sentence 1 of the German Basic Law.
In looking into this balance, the court found that Facebook, in principle, is entitled to require its users to comply with certain communication standards that can extend to requirements beyond criminal law (e.g. insult, defamation or incitement). Further, Facebook may also reserve the right to remove posts and block user accounts in the event of such a breach. However, in order to strike a balance with these conflicting fundamental rights, Facebook (or any social media platform) must undertake the obligation in its terms and conditions to inform the user concerned – even if it is retrospectively – about the removal of a post. With regards to the blocking of a user account, the user must be informed in advance, along with the reason for such blocking. The user must then be given an opportunity to respond to this, and Facebook will then be under an obligation to issue a revised decision.
As such, in this instance, the removal and the blocking, as per Facebook’s terms and conditions, did not meet this requirements, to obtain such a balance. Thus, the defendant was not entitled to delete the plaintiffs’ posts and block their user accounts. The BGH ordered Facebook to restore the posts and refrain from blocking the user accounts and deleting the posts when they are posted again.
D. Conclusion
Upon the ruling, a Facebook spokesperson stated that they “welcome the ruling of the Court, which upholds the principle that platforms like ours are allowed to remove hate speech according to company policies and block the respective user accounts”. The spokesperson further added that the decision of the BGH will be “carefully examined to ensure that we can continue to take effective action against hate speech in Germany”.
Although some have deemed this decision to be impractical, as social media allows for such a flurry of comments and posts to be rampant on a daily basis, it has also laid down the very fact that in content moderation, there are still limits that need to be adhered to. Ultimately, it will be interesting to see the consequences of this decision and how Facebook responds to this ruling. The new introduction of the Facebook Oversight Board may be the bridging gap in applying this ruling to practice, but ultimately all large social media platforms will now have to undertake the obligation to find the right balance between these fundamental rights, as is required by the German Federal Court.
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