Case Summary and Outcome
In March 2017, the Landgericht Würzburg, a First Instance Court in Germany, refused to grant an injunction forcing Facebook to take down a selfie showing the Claimant, a Syrian refugee, with the German Chancellor Angela Merkel which showed up in anonymous posts on Facebook, falsely accusing him of taking part in several terrorist attacks in Berlin in 2016.
The Court reasoned that Facebook was not the perpetrator nor a participant in the alleged defamation of the Claimant and had not in any way manipulated the content, which would have made it legally responsible for the distribution. The Court also said that, under the European Union’s electronic commerce rules (implemented in Germany’s Telemedia Law, Telemediengesetz) Facebook, as a ‘hosting provider’ was not obliged to ‘proactively’ search for and remove content unless the content is reported and is clearly unlawful. Following the report, Facebook had used geo-blocking to prevent access within Germany and Austria which was a sufficient measure for the handling of reported unlawful content.
The Claimant, Anas M., came to Germany in 2015 at age 18 and has a residency permit for specific purposes. He took a selfie with Germany’s Chancellor Angela Merkel on her visit to a refugee camp in Berlin-Spandau on 10th September 2015. The Respondent is Facebook Ireland Limited, the operator in charge of users outside the U.S.
On 27th December 2016, an anonymous Facebook account uploaded the Claimant’s selfie with the headline ‘Homeless person set on fire. Merkel took a selfie in 2015 with one of the offenders in a Facebook Group called ‘flüchtling.info’ (refugee info, no information on authorship). Right next to the selfie, another image was posted, showing the three real offenders of the terrorist attack and marking the one in the middle with a red arrow wrongly identifying him as the Claimant. Within a day this post was shared over 500 times and therefore reached approximately 25–50 000 users.
Another uploaded montage shows the Claimant with Angela Merkel in front of the truck which was used for the terror attack in Berlin before Christmas 2016 with the headline ‘They are Merkel’s deaths’. This post which was online from at least 20th December 2016 didn’t use the selfie itself but a picture taken by a press agency showing the Claimant while taking the selfie.
The Claimant himself found out about the posts on 28th December and immediately informed his legal representative who then reported the posts to the Respondent. The Respondent did not delete the original post because it was not violating user guidelines. Later on, however, the post was made unavailable within Germany and Austria via geo-blocking.
The Claimant alleged that the posts accused him of being a criminal offender and that the Respondent was liable for those contents, because Facebook forfeits the privileges of a host-provider by the use of its algorithm that determines which third party users see the posts in their timeline without searching for it. Anas M. claimed that the unauthorized use of his picture is an infringement of his general right of personality, which includes the right to personal privacy and to determine the extent to which any of his personal information is made public. He therefore sought an injunction.
The Court delivered a per curiam opinion ruling in favor of the Respondent. It held that the Complainant could not ask the Respondent to refrain from accusing him of being one of the perpetrators in the attack on a homeless man set alight in Berlin since the Respondent itself never claimed that in the first place. Therefore, the Complainant’s claim against Facebook for failing to take down the impugned content was without merit.
The Court found that the Respondent was neither the perpetrator nor a participant in the defamation of the Claimant. His picture together with the posting accusing him of being a murderer was posted by an anonymous user and the Claimant failed to argue that the Respondent adopted the content as its own. The Respondent is only liable for its own content according to the law on tele-media, which implemented the European Community’s E-Commerce-Directive, and categorizes the Respondent as a hosting provider enjoying liability privilege. The Directive aims inter alia to protect the right to freedom of expression.
Furthermore, the Court said that the Respondent fulfilled its duty once the unlawful content had been reported by rendering it inaccessible within Germany and Austria, since geo-blocking is an adequate measure and reasonable, because the Court has no extraterritorial power and cannot impose its laws outside Germany. Further, the Court said that filtering mechanisms would check all posted content before making it accessible for everyone, which would not only include objectionable content but also non-objectionable. The fact that non-objectionable content would not be accessible immediately would lead to an infringement of freedom of expression.