Content Moderation, Content Regulation / Censorship, Hate Speech
Themel v. Facebook Ireland
On Appeal Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Higher Regional Court in Munich, Germany held that Facebook must observe the right to freedom of expression when deleting or blocking a post or profile. An individual’s Facebook posts and profiles were blocked after Facebook determined that they violated its Community Standards, and he approached the courts for their restoration. After the lower court ordered the restoration, the Higher Regional Court agreed that Facebook did not have a non-reviewable discretion whether it deletes or blocks content and that it was bound by the requirements of the right to freedom of expression under article 5 of the German Basic Law. The Court held that Facebook may not remove or sanction a user’s expression of opinion which is permissible under the freedom of expression, but found that as one of the posts in question did constitute hate speech and so was not protected by the right to freedom of expression Facebook was entitled to remove that post.
On February 27, 2018, Facebook blocked the profile of an individual for a period of 30 days because of a post which negatively referred to refugees and the refugee policy of German Chancellor Angela Merkel. On March 27, 2018, Facebook again blocked the profile for another period of 30 days after a post in which the individual referred to Muslim refugees as “Muslim invaders”. The individual was the (former) administrator of the Facebook page “Bayern Souverän” – a conservative community page advocating for the independence of Bavaria – that was deactivated by Facebook on May 14, 2018.
The individual brought an application against Facebook Ireland Ltd., the operator of Facebook’s services in Europe, in the Regional Court in Munich (Landgericht München), challenging the blocking of his profile. In this hearing the Regional Court addressed the legality of the blocking of the profile, the restoration of the individual’s posts, future blocking measures and damages for an infringement of the individual’s general right to personality.The individual maintained that his posts were merely criticism of the Federal Government’s policy. He argued that the blocked posts did not constitute a violation of Facebook’s Community Standards and the blocking was therefore unlawful, and that the Community Standards had to be interpreted in light of the freedom to expression for them to be lawful. Facebook argued that the individual’s posts were relevant under criminal law as they contained numerous unfounded and detrimental generalizations about refugees.
On February 22, 2019, the Regional Court held that the blocking was unlawful and Facebook had to restore both posts. The Court stated that it had to consider the context of the expressions, because single expressions regarded as hate speech in isolation could be perceived as legitimate criticism in the context of other expressions, and added that for “criticism of public figures in the political sphere, a generous standard prevails” [para. 36]. The Court held that the definition of “hate speech” in Facebook’s Community Standards was vague and broad as it did not require a “qualified severity of the statement” and did not differentiate between targeted expressions on individual persons or general statements on larger groups of persons [para. 39]. Accordingly, the Court found that the individual’s posts did not constitute hate speech under these requirements.
In March 2019, both parties appealed to the Higher Regional Court in Munich (Oberlandesgericht München).
The Higher Regional Court Munich delivered a unanimous decision. The central issue before the Court was how Facebook was bound by the right to freedom of expression under article 5(1) of the German Basic Law when it blocks content and profiles in its social network.
The individual argued that because of Facebook’s market power it could not prescribe a certain frame of permissible opinions and had obligations under the freedom of expression in article 5.
Facebook argued that the lower court had wrongfully ordered the restoration of the individual’s posts. It argued that the law does not require social networks to publish every opinion as long as the content is not illegal. Facebook submitted that it had “virtual domiciliary rights” (virtuelles Hausrecht) protected by the Constitution which allowed Facebook to set rules on the usage of its networks, including to safeguard a certain culture of communication and to protect other users from derogatory content.
The Court confirmed that German jurisprudence, specifically BVerfG, 2 BvR 487/80 (04/23/1986) and BvR 400/51 (01/15/1958), established that constitutional basic rights have an indirect third-party effect (mittelbare Drittwirkung), which also affect private law relationships, especially the relevant general clauses and legal terms that must be interpreted. It referred to BVerfG, 1 BvR 3080/09 (04/11/2018) and held that conflicting basic rights “must be considered in their interaction and, in accordance with the principle of practical concordance, balanced in such a way that they are as effective as possible for all parties involved” [para. 73].
The Court made three major statements. First, the Court stated that the rules of conduct set out by a platform operator in general terms and conditions (Allgemeine Geschäftsbedingungen or AGB) are subject to review under section 307 of the German Civil Code (Bürgerliches Gesetzbuch or BGB). Given the indirect third-party effect of the basic rights, this review includes that the AGB have to comply with the limits to the right to freedom of expression under article 5(2) or the limits arising from conflicting constitutional rights (such as the general right to personality of third parties pursuant to article 2(1) in connection with article 1(1) of the German Basic Law). The Court held that Facebook’s ban on “hate speech” within Facebook’s Community Standards complies with the requirements under section 307 of the BGB, because it merely reflects and clarifies the limits of the freedom of expression under article 5(2) in a clear and concrete way.
Second, with regard to “virtual domiciliary rights” of social networks, the Court emphasized the “fundamental importance, which the freedom of expression has for the human person and the democratic order” [para. 84]. It stated that the operator of a social network whose purpose is the general exchange of information and opinions does have a scope of judgment as to whether a statement posted by a user on the platform may be removed or not, but this judgment is fully reviewable by courts. The Court stated that it would be irreconcilable with the balancing of conflicting basic rights if such a social network “were allowed to delete the post of a user in which it sees a violation of its guidelines according to its subjective assessment, even if the post does not exceed the limits of permissible expressions of opinion in an objective assessment” [para. 74]. Thus, the decision on the blocking of a certain user statement is not at the discretion of the platform operator.
Third, the Court held that a social network whose purpose is the general exchange of information and opinions may not remove or sanction an user’s expression of opinion when that expression is permissible under exercise of the right to freedom of expression. The Court based its finding on the user agreement concluded between the user and the social network in connection with section 241(2) of the BGB as well as the indirect third-party effect of basic rights.
The Court held that Facebook is a social network whose purpose is to enable a general exchange of information and opinions it has a scope of judgment subject to full review of courts and may not remove or sanction a permissible expression of opinion posted in its platform. However, the Court confirmed that platform operators are free to open a forum that, according to its purpose, is reserved for the discussion of certain topics only. The Court held that an expression of opinion was permissible if it falls within the scope of article 5(1) and does not conflict with the limits imposed by article 5(2) or conflicting constitutional rights. If the expression does not constitute a violation of criminal law, the assessment of the expression’s permissibility requires a weighing up of the conflicting legal positions.
The Court found that the individual’s post of February 27, 2018 met the objective requirements of incitement of masses under section 130 of the German Criminal Code (Strafgesetzbuch) as it contained statements that a significant number of refugees would regularly commit criminal offences which vilified this group of persons in a general way. The Court held that this incitement was not protected by the right to freedom of expression and that the post was unlawful and the individual could not claim its restoration. With regard to the individual’s post of March 27, 2018, the Court held that the lower court correctly ordered its restoration because the description of refugees as “invaders” was used in a figurative sense for the great number of refugees which illegally crossed the Hungarian border. Therefore, the individual’s expression was in this specific context within the limits of the user agreement and general terms and conditions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court clearly stated that Facebook is comprehensively bound by the right to freedom of expression when deciding on whether to block posts or profiles in its social network on the grounds that they violate its Community Standards, and that all these decisions are fully reviewable by courts.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.