Case Summary and Outcome

The Administrative Court of Leipzig, Germany, decided that a public broadcasting service could lawfully delete a comment on its social media page linking to an external website. A social media user had commented on a picture published by the broadcasting service, criticizing it as manipulative, and provided a link to an external source to support his argument. This comment was removed by the broadcasting service, as it prohibited links to external pages on its social media page. The Court held that this deletion did interfere with the claimant’s right to freedom of expression under Art. 5 para 1 of the German Basic Law (GG), but that the interference was covered by the broadcasting service’s “virtual domiciliary rights”.

Facts

On June 25, 2019, a public broadcasting service (the defendant) published a post on its Facebook page about the hot temperatures in Germany. It added a photo of the Elbe meadows in Dresden (Germany) to the post. A user of the social media network (the claimant) commented on this post and criticized the picture as manipulative, as it gave the impression that the water level of the Elbe was extremely low due to the shallow angle of the photo. To support his opinion, the user added a link to the website of the German Federal Institute of Hydrology.

The public broadcasting service deleted the user’s comment arguing that linking to external websites was not permitted on its social media page for legal reasons. This prohibition was explicitly stated in the defendant’s “Netiquette”, the terms of service of the public broadcasting’s social media page. It explained that the user could comment again, but instead of providing a link to the website, he could simply cite it.

On June 28, 2019, the social media user brought an action against the public broadcasting service before the Administrative Court of Leipzig, requiring the Court to ascertain the unlawfulness of the comment’s deletion and requesting that the comment be reinstated.

Decision Overview

On June 17, 2020, the Administrative Court of Leipzig issued a decision on the matter. The main question before the Court was whether a public broadcasting service could lawfully delete a comment on its social media page, made by a user, who, contrary to the public broadcasting service’s “Netiquette”, linked to an external website—or if such removal violated the user’s right to freedom of expression.

The claimant argued that the Terms of Service of the social media platform do not prohibit linking to websites and that only comments that infringed upon other users’ rights were prohibited. Furthermore, he stated that the public broadcasting service was part of the (indirect) public administration and therefore had to respect the user’s fundamental rights. Thus, for the plaintiff, deleting his comment interfered with his right to freedom of expression as enshrined in Art. Art. 5 para. 1 of the GG.

The defendant claimed that the comment’s deletion was lawful because it did not violate the claimant’s right to freedom of expression. This right, the defendant said, did not entitle the claimant to use the public broadcasting service’s social media page to express his opinion. Furthermore, the public broadcasting service argued it was protected by the freedom of broadcasting under Art. 5 para 1 sent 2 of the GG, whose aim is to prevent not only one-sided state influence but also from third parties.

The broadcasting service held that its goal was to maintain a balanced and neutral online presence and that to fulfill this end it had to be allowed to regulate comments. Moreover, the defendant considered that comments that included links to external websites could lead to liability risks since they might entail copyright violations. Additionally, it argued that there was no interference with the user’s right to freedom of expression because the comment was only deleted due to formal reasons (i.e. including a link) and not because of its substance. Nonetheless, the defendant said that even if there had been an interference, the measure was proportionate and justified since the plaintiff could have published the same comment without the link.

At the outset of its analysis, the Court held that the public broadcasting service was part of the (indirect) public administration and, thus, had to respect the user’s fundamental rights. According to it, the comment’s deletion was an interference with the claimant’s right to freedom of expression under Art. 5 para 1 of the German Basic Law. Through his comment, the Court said, the claimant wanted to express his opinion on the original post. The Court held that the commentary section, by enabling a public debate on a specific topic, was one of the main functions of the public broadcasting service’s social media page. As a result of the deletion, the claimant could no longer enjoy this particular function.

The Court decided that this interference, however, was justified. The Court opined that by deleting the comment following its “Netiquette”, the public broadcasting service had rightfully exercised its “virtual domiciliary rights.” This right includes the right to secure the purpose of the defendant’s social media page. Freedom of broadcasting, as enshrined in Art. 5 para 1 sent 2 of the GG, entails—according to the Court —that the public broadcaster is allowed to determine autonomously how it designs the content of its social media page—which includes the prerogative of how to moderate comments.

The Court added that the Interstate Broadcasting Agreement (Rundfunkstaatsvertrag) stated explicitly that links to external websites on public broadcasting pages without editorial review were not permitted. For the Court, this prohibition was reasonable in light of possible copyright infringements on external websites. Thus, the Court found that the public broadcasting service lawfully exercised its virtual domiciliary rights, as established in its “Netiquette”, by prohibiting external links in its commentary section.

Hence, the Court decided that the public broadcasting service did not violate the user’s right to freedom of expression and did not have to reinstate the comment.