Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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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”).
After the Regional Court found in Facebook’s favor, Ein Prozent appealed to the Dresden Higher Regional Court as Court of Appeals.
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 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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
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.
The Higher Regional Court sets as Court of Appeals a precedent on when Facebook is allowed to deny organizations the access to its platform completely.
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