Case Summary and Outcome

The Dresden Higher Regional Court in Germany held that Facebook was permitted to block access to its platforms for associations they classify as “hate organizations”. After a German right-wing association was classified as a hate organization and permanently blocked on Facebook’s social networks the association approached the Courts. The Higher Regional Court confirmed the decision of the Regional Court, and noted that social networks are in principle free to exclude hate organizations and their supporters under their terms of use. It held that as long as these exclusions are not arbitrary and take into account the users’ fundamental rights and the economic effects of a permanent exclusion the social media platform is entitled to permanently block users so as to protect its own interests. As the exclusion of the right-wing association met these requirements, the Court rejected the application for a preliminary injunction.

Facts

On August 28, 2019, Ein Prozent (“One Percent”), a German extreme right-wing organization, published the name and contact details of a journalist in a Facebook post and prompted its followers to “drop by” the location of the “denunciator”. Facebook deleted this post and blocked Ein Prozent’s account, citing a violation of its Community Standards. After Ein Prozent asked for a review of this decision, its account got deactivated by Facebook permanently. Facebook did not maintain that the post violated the Community Standards, but held that Ein Prozent is a “hate organization” as defined by the Community Standards as Ein Prozent supported at least one hate-spreading organization, the Identitäre Bewegung (“Identitarian Movement”).

Ein Prozent made an application before the Regional Court Görlitz as Court of First Instance for a preliminary injunction against the deletion of the post, the deactivation of its account and its classification as a hate organization. Ein Prozent argued that the post did not constitute hate speech and thus did not violate Facebook’s Community Standards. It also submitted that it was not linked to any hate organization – either through personnel or finances. Ein Prozent argued that the deletion and blocking of its account was an invalid application of Facebook’s terms of use. It submitted that Facebook had a monopoly on social platforms and thus could exclude users from its platform in special cases only, and maintained that Facebook had to respect Ein Prozent’s freedom to expression because of the indirect third-party effect of basic rights. The “indirect third-party effect” (mittelbare Drittwirkung) is a common constitutional concept in Germany. According to settled case-law of the Federal Constitutional Court, basic rights have effect only between the individual and the state and so not between private individuals – but when courts interpret and apply general legal terms in civil law they must apply the fundamental values in the German Basic Law. The German Basic Law is therefore described as an “objective system of values” which “radiates” into private-private legal relationships and thus has an indirect effect on private subjects as third parties.

Facebook Ireland Ltd. argued that Ein Prozent was interlinked with the xenophobic, racist and unconstitutional Identitarian Movement through personnel and funding, which allowed it to block Ein Prozent under its terms of use from its platform. Facebook relied on a post and newspaper article written by Ein Prozent in which it stated that it had financially supported Identitarian Movement.

After the Regional Court found in Facebook’s favor, Ein Prozent appealed to the Dresden Higher Regional Court as Court of Appeals.

Decision Overview

The Dresden Higher Regional Court delivered a unanimous decision. The central issue for the Court was whether the prohibition of hate organizations in Facebook’s Community Standards was a valid term of use.

The Court held that Facebook’s Community Standards’ prohibition of hate organizations had to comply with the transparency and clarity requirements under section 307 (1) of the German Civil Code (Bürgerliches Gesetzbuch or BGB). This provision addresses the control of general terms and conditions, and for this purpose, the terms “hate speech” and “hate organizations” had to be sufficiently defined and concise. The Court found that these terms of use were “defined in easily understandable language”, “underpinned with examples” and made “the requirements for the size, content and degree of organization of a ‘hate organization’ […] easily recognizable” for average users [p. 7]. Accordingly, the Terms were sufficiently concise for users to identify their contractual obligations. The Court also found that the sanctioned “support” of a hate organization was sufficiently defined within the general language and in accordance with the standards under the Criminal Code.

The Court acknowledged the market power and reach of the social networks operated by Facebook, and commented that it had to take this into account when considering the significant impact on the fundamental rights of the users. The Court emphasized that “when interpreting the Community standards and the balancing necessary in this context, it cannot be ignored that, due to this quasi-monopoly position in the area of social networks, the defendant takes over the framework conditions of public communication to a large extent and thus enters into functions that were previously assigned to the state as a task of services of general interest” [p. 9]. The Court established that Ein Prozent could invoke a violation of the freedom of expression and their general right to personality in respect of its business-related interests. However, Facebook could rely on its general freedom of action and virtual domiciliary rights. With reference to German jurisprudence, the Court stated that “[a]s constitutional value decisions, the basic rights radiate as ‘guidelines’ into civil law and thus have indirect third-party effect, which must be taken into account in the interpretation of general terms and conditions” [p. 9].

The Court held that Facebook’s Community Standards were valid. It found that if Facebook could not exclude users from its platform it would be exposed to the risk of being held liable for injunctive relief for Ein Prozent’s statements or would violate its duties under European or German law. Moreover, the tolerance of hate organizations on the platform could cause substantial damage to Facebook’s image and deter numerous users from participation in its network. The Court recognized that the risk that hate organizations would “infringe the rights of third parties through their activities on social networks is obviously higher than would be the case for an average user” [p. 10]. Against the backdrop of increased efforts and costs for control of the network and the risk of numerous legal disputes, the Court held that the “provider must not only be entitled to delete individual posts or to exclude the user in the event of a serious breach of contract, but must also be able to exclude ‘hate organizations’ as a whole and permanently because of their fundamental objective” [p. 10]. The Court rejected the argument that Facebook had an obligation to maintain the contract, as it noted that alternative social networks or websites were available even if they did have a smaller reach. The Court discussed the threshold for suspending accounts and noted that “the limit for a ban on hate organizations or their supporters is thus solely the prohibition of arbitrariness, which prohibits groundless, disproportionate terminations or terminations based on merely pretextual reasons without objective grounds” [p. 11].

The Court then examined whether Ein Prozent’s conduct met the criteria of a hate organization and so whether Facebook could exclude the organization from its platform. The Court noted that “the question of whether an association constitutes a hate organization or supports such an organization must be examined comprehensively by the court, taking into account all the circumstances presented and known to the court; the social network has no leeway in this regard” [p. 11]. With reference to the case of OLG Dresden, 4 U 2198/19 (02/12/2020), the Court considered an “offense” within the meaning of the Community Standards to be, “if persons or groups of persons are hit in the core of their personality and, in disregard of the principle of equality, are portrayed as inferior or are denied the right to live in the community” [p. 13].

The Court found that the permanent deactivation of the account could not be based on the fact that Ein Prozent supported another hate organization financially and organizationally. However, as Ein Prozent had made different offending statements on refugees and migrants in its account, it violated the Community Standards. The Court stated that this was independent from the fact that these statements may still have been within the scope of the freedom of expression under article 5 of the German Basic Law. The Court concluded that as Facebook had an “indirect commitment to basic rights” it could not terminate a user’s account “in the case of merely selective individual statements that do not allow any conclusion to be drawn about the ideological orientation of the claimant” [p. 15]. This applied unless “such an ideological orientation is evident from the claimant’s objectives discernible in its articles of association or other announcements or the behavior of its functionaries” [p. 15f.]. The Court held that this had to be determined in the main proceedings, through evidence, as Facebook had sufficiently proven Ein Prozent’s ideological orientation in the preliminary proceedings.

The Court held that Facebook’s deactivation of Ein Prozent’s account was not arbitrary, as Ein Prozent’s conduct could cause damage to Facebook’s business interests, and Ein Prozent had no legitimate protective interest.

Accordingly, the Court considered the classification of “Ein Prozent” as a hate organization under Facebook’s Community standards permissible and held that Ein Prozent was not entitled to a reactivation of his account and a restoration of the post in dispute.