Case Summary and Outcome

The Regional Court (Landgericht) of Frankfurt am Main, Germany, issued a preliminary injunction ordering Twitter to cease and desist from disseminating statements —and monitor new posts— that violate the general right of personality of Dr. Michael Blume, the Anti-Semitism Commissioner of the state Baden-Württemberg, by accusing him of being anti-Semitic, an adulterer and having pedophilic tendencies. Dr. Blume applied for a preliminary injunction requesting the deletion of the aforementioned content and for Twitter to desist from disseminating these messages. The Court held that these tweets were unlawful defamatory statements violating Blume’s general right of personality. Referring to the jurisprudence of Germany’s Federal Court (Bundesgerichtshof, BGH), the Court held that a hosting service has the obligation to remove unlawful content as soon as it obtains knowledge of it. This obligation, the Court argued, stems from the hosting service’s duty of care (“Störerhaftung”). The Court extended this obligation —making reference to rulings of the European Court of Justice (ECJ) and the Bundesgerichtshof— to content on the platform that is substantially the same (“kerngleich”) or similar.

Facts

From September 16, 2022, to September 20, 2022, a Twitter user posted tweets accusing Dr. Michael Blume —the Anti-Semitism Commissioner of the state Baden-Württemberg— of having pedophilic tendencies, committing adultery, involvement in anti-Semitic scandals, and being part of an anti-Semitic pack. In the period from September 25 to 29, 2022, Blume reported at least 46 posts through Twitter’s reporting procedure. On September 25 and September 29, Blume’s attorney sent Twitter two emails in which he requested Twitter to issue a cease-and-desist declaration with a penalty clause. As a result, three tweets were removed by the company, and on September 28, 2022, the Twitter user’s account was suspended. On October 3, 2022, the account was unsuspended, and the unremoved tweets were visible again. The account was suspended again on October 6, 2022.

On October 14, 2022, Blume filed a petition, against Twitter, for a preliminary injunction before the Regional Court of Frankfurt am Main, claiming a violation of his general right of personality, and demanding Twitter to cease and desist the dissemination of the above-mentioned accusations —whereas in the aforementioned tweets or in others with equivalent meaning.

Twitter filed a motion to dismiss the interim injunction, arguing that the impugned tweets were protected under the right to freedom of expression under Art. 5 para. 1 of the German Constitution (Grundgesetz, GG) and that “the scope of the asserted claim for injunctive relief was too broad” [p. 5].

Decision Overview

The central issue that the Third Chamber of the Regional Court of Frankfurt am Main had to decide was whether Twitter, as a hosting service (social media platform), must examine and desist from disseminating reported tweets that breach the general right of personality of other people and whether other similar tweets which were not yet reported, but are substantially the same (“kerngleiche Verletzungen“), should be deleted or its dissemination stopped.

The applicant argued that “the challenged tweets violate his private or even intimate sphere” [p. 3]. Therefore, Blume, said, Twitter should be obliged, under general law and by contract, to refrain from disseminating the reported tweets. In addition, Twitter should be held criminally liable for defamation —according to § 186 of the German Criminal Code (StGB)— and stalking, according to § 268 StGB. Moreover, the plaintiff said “that Twitter had an obligation to refrain from disseminating [breaching] content that is substantially the same from third parties” [p. 3]. He argued “that he does not demand an obligation to general monitoring, but an obligation to limited monitoring of concretely described content” [p. 3.].

The defendant claimed that Twitter is only responsible for reported, manifestly illegal content, “which is not the case here, given the highly political context of the tweets” [p. 5]. Twitter also maintained that the contested tweets were protected under the right to freedom of expression and that it was not obliged to generally monitor the content published on its platform. Regarding the plaintiff’s demands towards content that is substantially the same, It held that the theory expanding Twitter’s liability to content that is substantially the same is not applicable to freedom of expression and that applying it would lead to the necessity of making an autonomous judgment that is contrary to European Union Law.

The Court held that some of the contested tweets violate the general right of personality of the applicant. In its argumentation, it considered the applicant’s general right of personality under Art. 2 para. 1, 1 GG and art. 8 of the European Charter of Human Rights (ECHR) on the one hand, and the defendant’s right to freedom of expression, protected by Art. 5 para. 1 GG and art. 10 ECHR, on the other.

The Court said that the tweets accusing Blume of having a closeness to pedophilia and committing adultery were defamatory statements “based on an untruthful factual basis” [p. 7] and were therefore unlawful. Also, for the Court, the tweets that claimed that Blume was part of an anti-Semitic pack were unlawful, “as these are recognizably not aimed at contributing to the formation of public opinion, but rather at creating a mood against the person of the applicant in an emotionalizing form” [p. 8]. In doing so, the Court rejected the defendant’s argument regarding the public office of the applicant and its evaluation of the statements as legitimate criticism of power (“Machtkritik”). In the opinion of the Court, it was clear that “the tweets do not relate to any criticism of his exercise of a public office” [p. 9]. Regarding the statement about Blume’s involvement in anti-Semitic scandals, the Court dismissed the motion for a preliminary injunction because they “address true circumstances [that are] factually related to public discourse” [p. 9].

Regarding the defendant’s liability for violations of its duty of care, the Regional Court of Frankfurt referred to the jurisprudence of the Bundesgerichtshof (BGH, judgment of 2.6.2022 – I ZR 140/15 – YouTube II; BGH, judgment of 24.07.2018 – VI ZR 330/17 Rn. 36 – Prozessberichterstattung; BGH, judgment of 01.03.2016 – VI ZR 34/15 Rn. 23 – jameda.de II, BGH, judgment of 15.10.2020 – I ZR 13/19 Rn. 24 – Störerhaftung des Registrars). Following the aforementioned jurisprudence, the Court noted that hosting services do not have a general obligation to monitor tweets based on their lawfulness.

However, a duty of care arises “as soon as the provider obtains knowledge of unlawful content and does not take immediate action” [p. 10]. For this purpose, a notice informing the provider of unlawful content “must be formulated in such concrete terms that the infringement can be established without a detailed legal and factual review” [p. 11]. Referring to different cases of the Bundesgerichtshof (BGH, judgment 24.07.2018 – VI ZR 330/17 Rn. 36; BGH, judgment of 30.04.2008 – I ZR 73/05 Rn. 50 – Internetversteigerung III; BGHZ 185, 330 – Sommer unseres Lebens; BGHZ 158, 343 – Schöner Wetten; BGH, judgment of 09.02.2006 – I ZR 124/03 Rn. 32 – Rechtsanwalts- Ranglisten), the Court underscored the hosting service’s obligation to undertake all reasonable efforts in an individual case to prevent the violation of personal rights on its platform. As the defendant did not bring forward any evidence that an obligation to prevent the publication of such predefined illegal content would be an unreasonable burden, the Court assumed that such a monitoring obligation could be qualified as reasonable. Furthermore, the Court pointed out that this obligation applies independently of the person making the statement.

According to the Court, based on decisions by the ECJ (judgment of 03.10.2019 (C-18/18, [Glawischnig-Piesczek/Facebook Ireland] EU:C:2019:821) and the Bundesgerichtshof (BGH, judgment of 01.03.2016 – VI ZR 34/15 Rn. 23 – jameda.de II), the hosting provider’s care of duty expands also to similar violations present in other tweets. For the Court, similar messages are defined as those that are substantially the same, so “that the public regards [them] as equivalent to the prohibited statements and in which possible deviations do not affect the core of the statement” [p. 13].

Hence, the Court found a violation of the applicant’s general right of personality under Art. 2 para. 1, 1 para. 1 GG and art. 8 of the ECHR, and therefore granted a preliminary injunction ordering Twitter to cease and desist the dissemination of the impugned tweets and any other violating content that is similar or substantially the same.