Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
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The German Federal Court of Justice ruled that Facebook’s terms of service on deleting user posts and blocking accounts for violations of its Community Standards were invalid. Two individuals who had had xenophobic posts deleted by Facebook and their accounts blocked for violating the Community Standards had approached the courts seeking the restitution of their posts and accounts. The lower courts held that the xenophobic elements of the posts constituted hate speech and that Facebook was therefore entitled to take action by removing them. The Federal Court of Justice weighed the conflicting rights of the users’ right to freedom of expression and of Facebook to exercise a profession. The Court concluded that Facebook may reserve the right to remove posts and block the user account in question in the event of a breach of the Community Standards – even if their standards go beyond the requirements of criminal law – but that in order to balance the conflicting basic rights in such a way that they are as effective as possible for both parties, Facebook has to inform the user and grant them an opportunity to respond, followed by a new decision. As Facebook did not provide for these procurement requirements, the terms of service regarding the deletion of user posts and the blocking of user accounts were invalid and Facebook was not entitled to delete the posts and block the accounts.
A German private citizen published a post on their Facebook account, stating that while members of the radical political movement German Reich Citizen (Reichsbürger) never committed an assassination, “Islamic immigrants” committed murders. The post suggested that German citizens will be criminalized for their “different view of their homeland than the regime” and that immigrants could “murder” and “rape” in Germany and nobody would care. The post called on the German Office for the Protection of the Constitution to take action.
A second German private citizen commented on a Facebook post by a third party which featured an online video in which a person of immigrant background refuses to be controlled by a female police officer, because she is a woman. The individual’s comment implied that immigrants had no respect for German laws or women and that as immigrants “they will never integrate”. The comment stated that immigrants “will be forever on the taxpayer’s pocket” and could only “murder”, “steal”, “riot” and especially “never work”.
In August 2018, Facebook deleted both individuals’ statements on the grounds that they violated the platform’s ban on hate speech. Facebook’s terms of service (as of April 19, 2018) did not permit violation of the “Community Standards”, which prohibit and characterize “hate speech” in detail. The user accounts were disabled temporarily, so the individuals could neither post nor comment, nor use Facebook’s Messenger function.
Both individuals approached the courts, bringing actions against Facebook – which is provided for German users by Facebook Ireland Inc – arguing that Facebook was not entitled to delete their posts and block their user accounts. The individuals sought an order that Facebook unlock their blocked published comments and to refrain from blocking their user accounts or deleting their posts. They submitted that their comments did not fall under the definition of “hate speech” incorporated in Facebook’s Community Standards and so the deletion of the comments and the blocking of their user accounts violated their right to freedom of expression pursuant to Art. 5 (1) German Basic Law (Grundgesetz, GG). They argued that Facebook’s terms of service were ineffective, because the users would be unfairly disadvantaged by the right granted to Facebook to delete posts and block user accounts, contrary to the requirements of good faith.
Facebook argued that the purpose of the user agreement is not to guarantee the unrestricted expression of opinions, but only expression within the framework set by the terms of service and Community Standards. It submitted that, as a private company, Facebook had the right to impose restrictions on the content posted on the platform and that the individuals’ interest in the publication of their comments did not outweigh Facebook’s interest in a civilized culture of discussion, in order to protect other users and to provide a social platform on which other users can feel safe and protected.
On October 14, 2019, the Regional Court Nuremberg-Fürth (Landgericht Nürnberg-Fürth) dismissed the first individual’s claims. The Court held that Facebook had been entitled to delete the post and to block the user account because the individual’s post was not covered by the right to freedom of expression. The Higher Regional Court Nuremberg (Oberlandesgericht Nürnberg) dismissed the individual’s appeal on August 4, 2020, following the lower court’s decision and establishing that Facebook is entitled to require its users to comply with communication standards that go beyond the legal requirements and so may, in principle, also prohibit statements that would still be covered by freedom of expression.
On August 27, 2019, the Regional Court Regensburg (Landgericht Regensburg) ordered Facebook to allow the second individual to post the part of his expression in which he spoke about defying a policewoman’s order on the grounds that they did not take orders from a woman as this was a statement protected by freedom of expression. It stated that Facebook could not block or delete this expression. However, in respect of the other part of the expression, the Court dismissed the individual’s action, finding that it constituted defamation not permissible under the right to freedom of expression and was therefore subject to the ban on hate speech in Facebook’s terms of service. The Higher Regional Court Nuremberg (Oberlandesgericht Nürnberg) dismissed the individual’s appeal in its entirety on August 4, 2020, on the grounds that the individual’s comment constituted “hate speech” which was not permissible.
Both individuals then appealed to the Federal Court of Justice. The Federal Court of Justice heard the two matters together.
The Third Civil Senate of the Federal Court of Justice delivered its unanimous decision. The central issue for the Court’s determination was whether Facebook’s removal of posts and blocking of user accounts was an unjustifiable limitation of the right to freedom of expression.
The individuals argued that their deleted posts should be reactivated and sought an injunction against renewed account blocking and deletion of the posts.
The Court held that the terms of service, as of April 19, 2018, were effectively incorporated into the contractual relationship between Facebook and the individuals. In determining whether the terms of service effectively operate in the contractual relationship, the Court referred to Section 307 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB), titled “Control of reasonableness of contents”: “(1) Provisions in general terms of business are ineffective if, contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user. An unreasonable disadvantage may also arise from the fact that the provision is not clear and comprehensible.” The Court stated that “[a] clause is unreasonable within the meaning of Section 307 (1) sentence 1 BGB if the provider abusively attempts to assert his own interests at the expense of his contractual partner by unilaterally drafting the contract without also taking the latter’s interests sufficiently into account from the outset and granting him an appropriate compensation” [III ZR 179/20, para. 54]. When examining a clause, a comprehensive assessment and weighing of the mutual interests is required, considering the object, purpose and nature of the contract.
In determining the applicability of constitutional basic rights the Court stated that Facebook, as a private company, is not directly bound by the right to freedom of expression under Art. 5 (1) GG in the same way as the State, because basic rights are in principle only binding on state organs. It also noted that binding effect could not follow from the market-dominating position of Facebook, since its “market power […] cannot be equated with the monopoly position of state-owned companies in the area of public services, such as the postal service in the past. […] In particular, the defendant does not assume the provision of the framework conditions for public communications, such as ensuring telecommunications services, which is mentioned by the Federal Constitutional Court […] as a prerequisite for a state-like basic rights obligation. With its network, it does offer a significant communication option within the Internet, but it does not guarantee access to the Internet as such” [para. 59]. The Court referred to settled case law and held that the basic rights have an indirect third-party effect (mittelbare Drittwirkung), which also affects private law relationships, especially when relevant general clauses and legal terms must be interpreted. In this context, conflicting basic rights had to be “taken into account and balanced in accordance with the principle of practical concordance in such a way that they are as effective as possible for all parties” [para. 59].
The Court concluded that the users’ basic rights that were at issue were those to freedom of expression under Art. 5 (1) GG, because of Facebook’s authority to delete content and to take further measures against the user account in cases of “hate speech”. According to the Court, Art. 5 (1) GG grants the right to freely express and disseminate one’s opinion in speech, writing and pictures and applies irrespective of whether the statement has a factual core as its protection extends to statements in which facts and opinions are mixed. This applied irrespective of possibly polemical or defamatory content of a statement, and so the individuals’ comments fell within in the scope of protection of Art. 5 (1) GG.
The Court noted that Facebook’s rights at issue were the freedom to practice a profession under Art. 12 (1) GG and the right to freedom of expression under Art. 5 (1) GG. The Court noted that Facebook’s business model aimed at providing its users with a social network with a free and secure user experience and so the dissemination of crude comments was contrary to this interest, because users and advertising partners may feel deterred by it. Moreover, Facebook’s interest in not being liable (under civil law, criminal law or the Network Enforcement Act – (Netzwerkdurchsetzungsgesetz, NetzDG) for content stored in its platform had to be included in the weighting of the two contrasting rights. In regard to the right to freedom of expression, the Court stated that Facebook “makes the exchange of opinions among persons not personally known to each other possible in the first place. […] For this reason alone, the operation of the social network is covered by the scope of protection of Art. 5 (1) sentence 1 GG” [para. 74]. Facebook asserted its right to freedom of expression by setting up communication rules in its Community Standards, which express which forms of expression it does not tolerate in its network.
The Court balanced the rights and interests of the parties and concluded that Facebook is “in principle entitled to require the users of its network to comply with certain standards of communication that go beyond the requirements of criminal law” (e.g. insult, defamation or incitement to hatred) [para. 78]. The Court held that Facebook may reserve the right to remove posts and block the respective user account in the event of a breach of the communication standards, which may be necessary to protect a respectful and safe culture of discussion in the interest of others users. However, in order to strike a balance between the conflicting basic rights so that the basic rights positions of the users also become as effective as possible, and thus to maintain reasonableness within the meaning of Section 307 (1) BGB, the Court established the following requirements for the moderation of content in Facebook’s platform: 1) There must be an objective, non-arbitrary reason for the removal of content and the blocking of user accounts, which is “not based on mere subjective assessments or fears on the part of the defendant” [para. 82]. Facebook’s terms of service must also ensure that its decisions based on them are comprehensible; and 2) Facebook must employ certain procedural obligations, such as that it “must make reasonable efforts to clarify the facts of the case” and to provide the user with an opportunity to be heard as an important means of clarification [para. 83]. In this respect, it is necessary that Facebook “undertakes in its terms of service to inform the user concerned immediately about the removal of a post and in advance about an intended blocking of his user account, to inform him of the reason for this and to grant him an opportunity to respond, followed by a new decision with the possibility of making the removed contribution accessible again” [para. 85]. In principle, Facebook had to hear the user before a (temporal) blocking of the user account was effected, since the blocking “does not directly serve the elimination of a current violation of the user against the terms of service and Community Standards of the defendant, but the sanctioning of a violation and the prevention with regard to future violations” [para. 87]. For the situation of deleting certain comments, the Court found it is would not be mandatory to conduct the hearing prior to the deletion.
The Court justified these procedural requirements by stating that in the case of Facebook’s social network and its dominant market position, effective protection of basic rights requires procedural safeguards and thus the refusal of a benefit requires a justifiable reason. According to the Court, these requirements do not impose an excessive or disproportionate obligation to examine the platform’s content. The Court rejected Facebook’s objection that there may be cases, such as the present one, in which there is no need for clarification with regard to disputed factual assertions as due to “the frequently complex starting position of the interpretation of the content’s and the legal assessment of statements, there is often a high risk of misjudgment” [para. 86].
The Court held that the removal and blocking reservations in Facebook’s terms of service did not fulfil the procedural requirements, because these neither impose any obligation on Facebook to inform the users about measures taken, nor to justify these measures to the users and to give them the opportunity to respond on them and subsequently to make a new decision. Therefore, these reservations encroached upon the users’ basic rights and unreasonably disadvantaged the users of the network contrary to the requirements of good faith.
Accordingly, the Court held that the respective terms of service were invalid pursuant to Section 307 (1) BGB and Facebook was not entitled to delete the individuals’ posts and block their user accounts on the basis of its terms of service and community standards. The Court partially overturned the appellate decisions and ordered Facebook to refrain from blocking the first individual from posting its comment again or from deleting the comment and to reactivate the individual’s post that it had deleted. However, the Court did not grant the individuals’ application for an injunction due to the particularities of those proceedings.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its decision, the Court establishes specific procedural requirements for the social network Facebook to moderate its content and so the decision strengthens the right to freedom of expression by vesting users with a right to notification, justification and to response with subsequent redetermination in case of deletion of content or blocking user accounts. The decision clarifies that the moderation of content and the decision on which content is protected under the freedom of expression is not the sole responsibility of Facebook.
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.
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