Global Freedom of Expression

The Case of Discriminatory Content Against Immigrants

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication, Written speech
  • Date of Decision
    September 6, 2018
  • Outcome
    Decision - Procedural Outcome, Affirmed Lower Court
  • Case Number
    4 W 63/18
  • Region & Country
    Germany, Europe and Central Asia
  • Judicial Body
    Appellate Court
  • Type of Law
    Civil Law, Criminal Law, Meta's content policies
  • Themes
    Content Moderation, Hate Speech, Facebook Community Standards, Hate Speech
  • Tags
    Facebook, Discrimination

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Case Analysis

Case Summary and Outcome

The Higher Regional Court of Stuttgart, Germany (Oberlandesgericht Stuttgart), upheld a regional court’s decision, stating that Facebook had not violated a user’s right to freedom of expression by removing a discriminatory post about migratory movements and blocking his account for 30 days. The Court also held that the platform’s community guidelines met the requirements of transparency and non-discrimination under German contractual law. After Facebook removed the content and blocked the user’s account, arguing that a post they published violated its guidelines on hate speech, the user filed a petition for preliminary injunction before the Regional Court of Ulm — asking Facebook to cease and desist from blocking the user’s account and from removing the above-mentioned post. The Regional Court of Ulm dismissed his motion as there was no reason for a preliminary injunction. The Higher Regional Court Stuttgart upheld the decision and concluded that the applicant’s right to freedom of expression did not overweighing other rights, as his statements were discriminatory against immigrants.


On June 20, 2018, Facebook deleted a post, published on its platform, by a German user: “As Nostradamus said: they will come across the sea like grasshoppers, but they will not be animals… how right the man was.” [para. 45] In addition to the removal of the post, Facebook also blocked the applicant’s account for 30 days.  Facebook explained this decision arguing that the post violated its community standards on hate speech.

On July 18, 2018, the user filed a petition for a preliminary injunction before the Regional Court of Ulm, asking Facebook to cease and desist from blocking his account and removing his post. He argued that his statement was protected by the right to freedom of expression, as enshrined in Art. 5 para. 1 sent. 1 of the German Basic Law (Grundgesetz, GG), and did not violate Facebook community standards.

The Regional Court of Ulm denied the motion on July 19, 2018. It saw no reason for a preliminary injunction, as there was no urgency in the matter since the duration of the main proceedings would not entail any significant disadvantages for the plaintiff. The applicant appealed this decision on July 31, 2018. The case was submitted to the Higher Regional Court of Stuttgart on August 21, 2018.

Decision Overview

The main issues that the Higher Regional Court of Stuttgart analyzed were (1) whether the blocking of the user’s account and the deletion of his post — under the argument that it violated Facebook’s community guidelines on hate speech — violated the plaintiff’s freedom of expression protected under Art. 5 para. 1 GG; and (2) whether Facebook’s community guidelines were consistent with §§ 305 et seq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB) which governs contractual terms and conditions.

The applicant argued that his statement was a permissible expression of his opinion as it “leaves completely open to whom it refers.” [para. 47] Moreover, he held that the content did not breach Facebook’s community guidelines which, as general terms and conditions, are also invalid.

The Court began its argument by studying the applicant’s argument by which his statement left completely open to whom it refers. For the Court, the post had to be read in the context of migratory movements of people across the Mediterranean Sea towards the European Union, as confirmed by the applicant’s submissions. Thus, the Court concluded that the applicant’s statement “compares, in its core, humans to grasshoppers.” [para. 70] According to the Court, the statement could constitute “an expression of an opinion at least close to the limits of unlawful defamatory criticism.” [para. 75]

The Court also rejected the plaintiff’s argument that stated that Facebook’s community guidelines regarding “hate speech“ were invalid under §§ 305 to 310 of the German Civil Code, which allows courts to review general terms and conditions.  Following the jurisprudence of other Higher Regional Courts (OLG Dresden, order of August 8, 2018, 4 W 577/18, and OLG Karlsruhe, order of June 25, 2018 – 15 W 86/18), the Tribunal stressed that the guidelines did not pose “an unreasonable disadvantage contrary to the requirement of good faith” [para. 71], nor are they “surprising or ambiguous.” [para. 71] Furthermore, it considered that Facebook’s definition of “hate speech [was] ‘formulated in a sufficiently comprehensible and concrete manner.’” [para. 72]

The Court ascertained that constitutional basic rights have an indirect effect on private parties. Thus, Facebook, as a legal entity under private law, was also bound by the right to freedom of expression to a significant degree, especially “given the respondent’s dominant position in the market for social networks and the great importance of freedom of expression in a democratic constitutional state.” [para. 73]

Subsequently, the Court weighed the applicant’s right to freedom of expression with other fundamental rights and found that the applicant’s right was sufficiently considered in Facebook’s community guidelines. For example, the Court underscored the personality rights of other users — protected by Art. 1 para. 1 and Art. 2 para. 1 of the GG. In weighing such rights, the Court argued that the applicant’s post could “affect the human dignity of migrants originating from Africa and living here, who are also likely to be potential users of the respondent [company]” [para. 73].

The Court also pointed out that the defendant was entitled to its “virtual domiciliary rights”, protected under Art. 14 of the GG (the right to property), which collide with the plaintiff’s freedom of expression. Moreover, for the Court, Facebook is also entitled to the right to entrepreneurial freedom protected under Art. 12 para. 1 GG, which also opposes the applicant’s freedom of expression and therefore limits it.

Furthermore, the Court mentioned § 241 para. 2 of the BGB as a valid limit to the right of freedom of expression. This provision — regarding contractual obligations — states that “by its contents, an obligation may arise for each party to take account of the rights, legal interests and other interests of the other party.” The Court noted that the applicant and Facebook agreed to abide by the company’s Community standards. Yet, the applicant did not respect them by posting discriminatory content against migratory movements. Hence, the Court concluded that the applicant violated his contractual obligations under § 241 para. 2 of the BGB, which must be considered when determining the limits to the applicant’s freedom of expression.

The Court also considered that by not blocking the applicant’s statement, Facebook itself could be held liable under § 4 of the Network Enforcement Act since the deleted post “gives reason to an examination of § 130 of the German Criminal Code,” [para. 76] which criminalizes “incitement of the masses”.

The Court found neither a violation of the applicant’s right to freedom of expression nor a reason to invalidate Facebook community guidelines.  Therefore, the Court dismissed the applicant’s appeal and affirmed the lower court’s decision.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

In this decision, the Court held that Facebook can delete posts that are contrary to its community guidelines. The Court justified its decision by highlighting Facebook’s discretion based on its right to property (Art. 14 GG) and its entrepreneurial freedom (Art. 12 GG). It also underscored Facebook’s potential liability when failing to remove unlawful posts according to the Criminal Code. The Court also weighed the user’s freedom of expression against the right to dignity of other individuals (and Facebook users) that could have been affected by the deleted content. In doing so, the Court considered the post to be discriminatory and concluded that the user’s restriction of their freedom of expression was valid, which follows international standards on legitimate restrictions to this right.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

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