Access to Public Information, Defamation / Reputation, Digital Rights, Privacy, Data Protection and Retention
Denegri v. Google Inc (Appellate Court)
Closed Contracts Expression
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The Regional Court (Landgericht) of Frankfurt am Main, Germany, granted damages and an injunctive relief against Facebook ordering the company to cease and desist from disseminating memes violating the general right of personality of Renate Künast —a German politician—, by misquoting her. The Court also ordered Facebook to monitor new memes that include similar unlawful content. The case was brought by Künast after she was continuously misquoted on Facebook regarding her opinions on integration. For the Court, these misquotations violated Künast’s general right of personality. The court held that hosting services (social media platforms) have duties of care and are therefore liable for unlawful content on their platform as soon as they obtain knowledge of it and do not take immediate action to block it. This obligation rests on the specific infringing content, similar content, and content that is substantially the same.
On February 28, 2021, Renate Künast, a German politician, reported to Facebook a meme hosted on this platform. The contested meme included a picture of Künast, her name, and conveyed the impression that she made the following statement: “Integration starts with you as a German learning Turkish!” [p. 1] Already in 2015, Künast made clear that she never made this statement. She requested Facebook to remove the meme, since according to her it was an act of defamation, criminalized by § 186 of the German Criminal Code.
On April 1, 2021, she asked Facebook again, through a lawyer’s letter, to remove the aforementioned meme and another similar one. Additionally, she requested from Facebook to remove further misquotations “by blocking identical and similar memes on the entire platform as well as the submission of a cease-and-desist declaration with penalty clause and damages.” [p. 3]
On April 12, 2021, Facebook blocked the first meme but did not issue the requested cease-and-desist declaration.
As a result, Künast filed a lawsuit on 23 April 2021 —against Facebook— before the Regional Court of Frankfurt am Main, requesting the removal of 3 specifically named memes as well as the removal of identical and similar content on the entire platform.
On May 5, 2021, Facebook blocked another specifically designated meme. After they were notified of the plaintiff’s application, the defendant blocked posts —specifically designated by the applicant— on June 10, 2021, and on August 17, 2021.
On January 5, 2022, the plaintiff rephrased its claims and complained “that identical memes and memes with similar content continue to be published on the platform” [p. 4] and provided further examples of these memes.
On March 3, 2022, Facebook informed the Court, “that these [memes were] no longer available in Germany since January 18, 2022.” [p. 5]
The Third Civil Chamber of the Regional Court of Frankfurt am Main had to decide “whether Facebook, as a hosting service, is obligated to block —after receiving notice of content that violates the general right of personality [of an user]— only the URL specifically named by the person concerned or, in addition, all infringing content that is substantially the same” [p.1] or similar.
The plaintiff claimed that Facebook must cease and desist from publishing all identical memes —and other content that is substantially the same which currently exists on its platform— that misquotes her thoughts on integration. Moreover, Künast held that the plaintiff should not have the burden of specifying the specific URL in which the offending content is hosted. Instead, to guarantee its right to effective legal protection, it is Facebook’s obligation to identify infringing content and remove it. Furthermore, Künast argued that “the continued dissemination of infringing content has caused her non-material damage, for which the defendant has been liable since it became aware of it.” [p. 5]
The defendant held that it deleted every designated meme and blocked identical and almost identical unlawful content in Germany. Facebook considered that Künast’s demands call for a case-by-case review in violation of European Union law, resulting in a “manual obligation to investigate and monitor all social media postings.” [p. 7] Moreover, the defendant stated that the plaintiff’s applications were too broad since they refer too to identical content and content that is substantially the same. Facebook argued that it could only be held liable for specifically designated posts because it is a neutral hosting service. It is therefore not obliged to execute preventive control on all content. Also, the company mentioned that the technical possibilities for such control are limited. The defendant also noted that human content moderation as “demanded by the plaintiff for the identification of infringing content, would require an autonomous assessment” [p. 7] which Facebook cannot be obliged to make. The social media company further argued “that the lawsuit endangers the freedom of Internet communication.” [p. 7]
For the Court, Facebook violated Künast’s general right of personality protected under §§ 823, 1004 para. 1 sent. 2 of the German Civil Code, Art. 2 para. 1, 1 para. 1 of the German Basic Law and Art. 8 European Convention on Human Rights (ECHR). The Court said that it is generally known “that it is a violation of personal rights when a statement is attributed to a person that he or she did not make” and that “there is no justification for putting a false statement in someone’s mouth.” [p. 9] Moreover, the Court held that the dissemination of a misquote distorts the political battle (Meinungskampf) and prevented “an open, public debate about the plaintiff, her statements and positions“ [p. 16]. Referring to the Constitutional Court (BvR 1073/20), the Regional Court stressed that the protection of personal rights of politicians is particularly important and in the public interest. Otherwise, they cannot be expected to get involved and commit themselves to participation in state and society
The Court referred to several cases of Germany’s Federal Court (BGH, judgment of July 15,1999 – I ZR 204-96; BGH, judgment of September 18, 2014 – I ZR 34/12; BGH, judgment of March 9, 2021 – VI ZR 73/20), to highlight the fact that the plaintiff´s use of the terms “identical” content and content that is “substantially the same” did not render the applications indeterminate. Furthermore, the Court concluded that Facebook must cease and desist from disseminating all memes —spreading the misquote— that violate the plaintiff’s general right of personality.
Following the jurisprudence set out by the European Court of Justice (ECJ) (C-18/18 – Glawischnig-Piesczek), the Court said that the aforementioned obligation does not require an an “autonomous assessment” in violation of European law since the platform does not have to assess the legality of the quotations in question. The platform’s obligation, the Court noted, is limited to recognizing if an uploaded meme contains an unlawful misquotation [p. 13].
Subsequently, the Court cited Germany’s Federal Court (BGH, judgment of July 24, 2018 – VI ZR 330/17 – Prozessberichterstattung), to ascertain that hosting services are only liable when they violate their duties of care. It clarified that a hosting service has no general obligation to monitor postings on their lawfulness before their publication. Yet, it is liable as soon as it obtains knowledge of concrete infringing content and does not take immediate action to block the content, as it was laid out by the BGH in judgments of March 01, 2016 – VI ZR 34/15 Rn. 23 – jameda.de II; September 13, 2019 – I ZR 140/15 Rn. 49, 52 – YouTube, and October 15, 2020 – I ZR 13/19 Rn. 24 – Störerhaftung des Registrars. For this, a notice of unlawful content must be formulated “in such concrete terms that the addressee of the notice can easily determine the infringement, that means without a detailed legal and factual examination.” [p. 10]
The Court added, following the precedent laid out by the BGH in judgments of August 17, 2011 – I ZR 57/09 Rn. 39 – Stiftparfüm, and July 12, 2012 – I ZR 18/11 – Alone in the Dark, that as soon as the hosting service has knowledge of an infringement “it has not only the obligation to block the concrete infringing content but must also take measures to prevent further similar infringements.” [p. 10]
Making reference to multiple decisions issued by the BGH (judgment of July 24, 2018 – VI ZR 330/17 Rn. 36; judgment of April 30, 2008 – I ZR 73/05 Rn. 50 – Internetversteigerung III; 185, 330 – Sommer unseres Lebens; 158, 343 – Schöner Wetten; and judgment of February 9, 2006 – I ZR 124/03 Rn. 32 – Rechtsanwalts-Ranglisten, the Court emphasized that the extent of the aforementioned obligation depends on whether it can reasonably be expected from the hosting service to prevent the infringement under the circumstances of the individual case. Only when the hosting service undertook all reasonable technical and economic efforts, the Court considered, liability can be excluded.
Regarding Facebook’s liability in this particular case, the Court stated that the platform breached its duty of care as it “unlawfully contributed to the continued dissemination of the misquotation in question by the original responsible users. It is therefore responsible for the fact that a false impression is continuously created that the plaintiff made the statement ‘Integration starts with you learning Turkish as a German!’” [p. 9]
The Court also held that the defendant’s duty of care includes the moderation of memes with identical and similar content. Hence, the Court argued that it would have been “technically and economically reasonable for the defendant to recognize identical, almost identical and similar memes as well as memes with a caption, even without a specific designation of the URL” [p. 11] using automated procedures that filter content by comparing the hash values of posts with the original post. It also pointed out that this does not entail an obligation to monitor all the content on the platform, but rather “those that remain after artificial intelligence filtering” [p. 14].
Thus, The Court found a violation of the plaintiff’s general right of personality protected under §§ 823, 1004 para. 1 sent. 2 of the German Civil Code, Art. 2 para. 1, 1 para. 1 German Basic Law and Art. 8 of the ECHR and therefore granted the plaintiff injunctive relief requested for Facebook to cease and desist from the dissemination of statements containing the misquotation —moderating content that is similar or substantially the same to the unlawful content— and 10,000 EUR in damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Court considered that social media platforms are liable for their users’ content as soon as they are informed of unlawful posts. The obligation to remove content includes the unlawful content as well as content that is “substantially the same” or similar. This can lead to an obligation for content providers to proactively monitor and interpret whether content is “substantially the same” as previously recognized unlawful content, depending on the individual case and injunctions issued. According to the Court, such an obligation is specific, as it only concerns specific content. However, it can be classified as a de facto general monitoring duty, as a platform must analyze all content on its service to determine whether a publication is “substantially the same” as other unlawful content. The Court also noted that a platform’s failure to identify and block or remove such content may result in damages, thus extending liability to intermediaries.
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