Content Moderation, Political Expression
Davison v. Randall
Closed Expands Expression
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The applicant “Der Dritte Weg” (The Third Path) is a small right-wing political party in Germany. On January 21, 2019, the party shared a link on its Facebook page to an article from its website. This article referred to people living in Zwickau’s neighbourhood Neuplanitz as “left behind in social and financial terms” and stated that “[w]hile more and more [culturally strange and dissimilar] foreign asylum seekers, who sometimes express their gratitude by violence and criminal offences, were accommodated in the apartments in the prefabricated high-rises, many Germans in this neighbourhood do not have any prospects […].” [Abstract of the German Federal Constitutional Court’s Order of 22 May 2019, 1 BvQ 42/19, p. 1]
Shortly after sharing this article, Facebook informed the applicant that the article would constitute hate speech and violate Facebook’s community standards. Therefore, the visibility of the article was restricted and the applicant’s ability to publish content was disabled for 30 days. Following an objection by Der Dritte Weg based on its freedom of expression, Facebook disabled the applicant’s account on January 30, 2019 and the the account and its content were no longer available.
After a written warning, Der Dritte Weg applied to the Regional Court Frankenthal (Pfalz) for a preliminary injunction: firstly, to oblige Facebook to grant the party access to its Facebook profile and, secondly, to unlock or restore and condone its posted article. The applicant argued that Facebook was not entitled to disable or delete the article on the ground of its general terms and conditions, because the deleted article did not fall under the options of sanctions provided in the contract. Moreover, Facebook would be bound by the basic rights and, as it had a monopoly position, it had to observe the indirect horizontal effect of basic rights. Therefore, Der Dritte Weg claimed a violation of its right to freedom of expression under Art. 5 German Basic Law as well as its right to equal opportunities of parties pursuant to Art. 21, 3 in connection with Art. 38 (1) German Basic Law. It said that the disabling of its Facebook page would lead to a distortion of opportunities in the prospect of the upcoming European Parliament Elections campaign.
On March 18, 2019, the court rejected the applicant’s motion, because the expression would be unlawful under the Network Enforcement Act (Netzwerkdurchsetzungsgesetz, NetzDG). The respondent was therefore obliged to take measures such as disabling or deleting the applicant’s page pursuant to § 1 (3) NetzDG in connection with § 130 German Criminal Code, which punishes group incitement. The court held that the platform provider had enough reason to assess a violation of § 130 Criminal Code, as the group of “asylum seekers” is a section of the population within the meaning of § 130 Criminal Code. By calling asylum seekers “culturally strange and dissimilar” and combining this expression with “express their gratitude by violence and criminal offences” the applicant attacked this section of the population in its human dignity and made it maliciously contemptible. Thus, the respondent was likely to be liable under § 4 NetzDG and the disabling and deletion of the article was proportionate. According to the court, the applicant had no right to use Facebook’s services again, as there would be no obligation for Facebook to engage in a (new) user contract with the applicant. Despite the fact that Facebook would play an important role in forming opinions, the applicant could use other ways to express its opinion, such as websites, e-mail or other social networks. The court concluded that even if Facebook was subject to a substantial indirect horizontal effect of the basic rights and those had to be considered when assessing the general terms and conditions, Facebook was allowed to delete the article. Despite the fact that Der Dritte Weg is a political party, the basic rights were not guaranteed without restrictions and it had to obey the personality rights of other users (Art. 1 and 2 German Basic Law) or the virtual domestic authority of the service provider (Art. 14 German Basic Law).
On April 17, 2019, the Pfälzisches Higher Regional Court Zweibrücken rejected an immediate appeal.
Before the Federal Constitutional Court, the applicant applied for a preliminary injunction to suspend the lower courts’ decisions and pursue its application to oblige Facebook to grant the party access to its Facebook profile and to unlock or restore and condone its posted article. Der Dritte Weg alleged that its basic rights under Art. 5 (1), Art. 21 (1) in connection with Art. 3, Art. 2 (1), Art. 38 (1) and Art. 19 (4) German Basic Law were violated.
On May 22, 2019, the Second Chamber of the First Senate decided in a per curiam decision to issue a preliminary injunction ordering Facebook Ireland Ltd. to grant the applicant access to its Facebook profile “Der III. Weg” until the 2019 Elections to the European Parliament were officially concluded.
First, the Court set forth the requirements for a preliminary injunction pursuant to § 32 of the Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz, BVerfGG). It stated that “the reasons put forward for the unconstitutionality of a challenged measure are generally not taken into consideration, unless the principal proceedings are inadmissible from the outset or manifestly unfounded. […] If the outcome of the principal proceedings is open, the Federal Constitutional Court weighs the disadvantages that would arise if a preliminary injunction were not issued but the constitutional complaint were successful in the principal proceedings against the disadvantages that would arise if the preliminary injunction were issued but the constitutional complaint were to be unsuccessful in the principal proceedings.” [Abstract of the German Federal Constitutional Court’s Order of 22 May 2019, 1 BvQ 42/19, p. 1]
The Court held in accordance with well-established case-law that the basic rights, especially the principle of equality under Art. 3 (1) German Basic Law, can establish an indirect horizontal effect under specific constellations in a lawsuit between two private parties. In the case at hand, the indirect horizontal effect could govern and limit the extent of the civil legal powers of a social network such as Facebook, which has a significant market power in Germany. If and under which requirements this applies to the provider of a social network would be dependent “on the degree of their dominant position on the market, the orientation of the platform, the degree of dependency on that platform and the affected interests of the platform operator and other third parties”. [para. 15] However, the exact determination had not yet been decided by the civil courts, nor the constitutional courts. The Court concluded that these were difficult legal questions that it could not decide in the preliminary review and it needed to weigh the disadvantages of a preliminary injunction, which it decided in favor of the applicant.
The consequences that would occur if Der Dritte Weg were denied the use of Facebook’s network, but Facebook was later obliged to restore the access to its platform, outweighed the consequences that would occur if Facebook was temporarily obliged to restore the access, but it later turns out that the refusal of access was lawful. This would apply for the period until the Elections to the European Parliament were carried out. The Court reasoned that “[t]he exclusion from using the respondent’s services, which, according to the respondent’s advertising, are used by more than 30 million people in Germany every month, denies the applicant an essential opportunity to promote its political messages.” [Abstract of the German Federal Constitutional Court’s Order of 22 May 2019, 1 BvQ 42/19, p.2] Facebook’s social network creates a forum for mutual exchange and expression of opinion, which is of particular importance for Der Dritte Weg for the dissemination of political programs and ideas. The Court found that if it did not issue the preliminary ruling, the applicant would be denied an essential facility to disseminate its political ideas and enter into discussion with its users.
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