Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Higher Regional Court Munich ruled that Facebook’s deletion of a comment posted by a right-wing politician was an infringement of Facebook’s contractual relationship with its users. The politician had responded to a slur made against her in a debate in the comments below a news article on Austria’s immigration policy and said that “I can’t compete in an argument with you. You are unarmed and this wouldn’t be very fair from my side”. Facebook subsequently deleted her comment and suspended her account for 30 days, finding that the comment infringed its community guidelines. The Court held that the comment constituted an exercise of freedom of expression and that Facebook had to consider its users right to freedom of expression under Germany’s Basic Law when applying its own guidelines.
On August 7, 2018, Spiegel-Online, a German news website, posted an article on its Facebook page, titled ‘Österreich kündigt Grenzkontrollen an’ (Austria announces border controls). There was a heated debate in the comments linked to the Facebook post, and Heike Themel, a German politician and member of the right wing AfD-Party, was referred to as ‘Nazischlampe’ (Nazi-slut). Themel responded to that comment, quoting a German poet, and said ‘”Ich kann mich argumentativ leider nicht mehr mit Ihnen messen. Sie sind unbewaffnet und das wäre nicht besonders fair von mir.” (I can’t compete in an argument with you. You are unarmed and this wouldn’t be very fair from my side).
Facebook Ireland Inc., deleted Themel’s comment and suspended her account for 30 days. This decision was based on Facebook’s community guidelines, No. 5.2.
Themel approached the Higher Regional Court Munich, seeking a preliminary injunction against Facebook’s actions.
The central issue for the Higher Regional Court Munich (OLG Munich) was whether Facebook’s actions in deleting Themel’s post and banning her for 30 days was an infringement of her right to freedom of expression under article 5(1) of Germany’s Basic Law.
The Court examined Facebook’s community guidelines and held that No 5.2 – which was the basis for Facebook’s actions in this case – was a violation of section 241 II of the German Civil Code because it gives Facebook the power to decide which posts or comments violate its community guidelines. The Court noted that this unilateral right contradicts section 244 II’s requirement that both parties to a contract are obliged to respect each other’s rights and interests.
The Court emphasized that the purpose of Facebook as a social media platform was to give its users a “public market place” for an exchange of views and opinions, and noted that in the context of the right to freedom of expression permissible expressions of opinion cannot be deleted from the platform.
The Court held that Themel’s comment could not constitute “hate speech” and that Facebook’s deletion of the comment and suspending Themel’s account was therefore unlawful. The Court found that it was unjust to allow Facebook to delete comments which do not infringe the right to freedom of expression simply because Facebook unilaterally finds them to be in violation of their community standards.
Accordingly the Court held that the deletion of Themel’s comment constituted a breach of contract as Facebook is required to respect Themel’s right to freedom of expression under article 5(1) of the Basic Law in its engagements with its users.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Higher Regional Court Munich stated that private actors – such as Facebook – are obliged to protect individuals’ right to freedom of expression, and that, therefore, this obligation to respect the right contained in the Basic Law is not only imposed on state organs but on private bodies as well.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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