Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Cologne Regional Court, Germany found that Facebook could not block a user’s account or remove comments related to specific incidents as they did not constitute incitement or hate speech. A user had commented twice on Facebook, criticizing refugees’ conduct and behaviour in response to an article and a video featuring specific events, and after Facebook blocked her account for a total of 60 days she approached the courts. The Court found that the comments did not constitute incitement under German criminal law, and so Facebook could not rely on that as grounds for blocking the account. It noted that the regular user would believe that Facebook offers an opportunity to share opinions on a wide range of topics, and held that as the user’s comments did not “generally incite against all foreign persons” they could not fall under hate speech prohibited by Facebook’s Community Standards. The Court issued a preliminary injunction, ordering Facebook to reactivate the respective comments in its network and unblock the user’s Facebook profile.
On May 7, 2018, Facebook blocked a German user’s profile, preventing her from using her profile for a period of 30 days by disabling the function to post new or share content. The background to the blocking was an article that refugees would go on vacation from Germany to their home countries and then return to Germany, to which the user had commented “And the German taxpayer pays and gets up at half past five in the morning for these shameless freeloaders to come to work!”
On June 14, 2018, Facebook renewed the blocking for another 30 days because the user had commented on a video showing how numerous asylum seekers attacked police officers during a police operation in front of an asylum seekers’ home. In her comment, she referred to refugees as “riffraff” (Gesindel) which she “could not stand anymore” and stated, “[g]et these people out of the country, they don’t belong here!”.
Section 130 (1) of the Criminal Code (Strafgesetzbuch, StGB) states: “(1) Whoever, in a manner which is suitable for causing a disturbance of the public peace, 1. incites hatred against […] sections of the population, or calls for violent or arbitrary measures against them or 2. violates the human dignity of others by insulting, maliciously maligning or defaming one of the […] sections of the population incurs a penalty of imprisonment for a term of between three months and five years.”
The user’s objections against both blockings were unsuccessful. The user’s profile was reactivated on July 15, 2018, but the two comments remained deleted.
The user brought an application before the Cologne Regional Court (Landgericht Köln) for a preliminary injunction ordering Facebook to cease and desist from blocking her profile and comments in its network
The Cologne Regional Court delivered a unanimous decision. The central issues for the Court’s determination were whether the user’s comments constituted an insult or “incitement of masses”, and under which conditions Facebook was entitled to block users’ content.
The user argued that the blockings were unlawful, because they neither constituted incitement nor a violation of Facebook’s Community Standards, which define rules on “hate speech” and their different degrees. She submitted that the Community Standards were void as these did not respect her freedom of expression under art. 5 German Basic Law (Grundgesetz, GG) and that Facebook had a dominating position on the market and therefore could not censor opinions that were not relevant under criminal law.
Facebook argued that the comments could constitute “incitement of masses” under section 130 StGB and that, in any case, the comments violated Facebook’s Community Standards, because the user “had not only referred to those foreigners who, in her view, were unjustifiably receiving social benefits or committing acts of violence against police officers, but had in fact meant all foreigners” [para. 68].
The Court examined whether the comments constituted an insult or an incitement of masses under the Criminal Code. It stated that Facebook would be entitled to delete comments criminalized by criminal law and to prevent further similar criminal acts, even without an explicit provision in its Community Standards, because “no one has to assist in committing criminal acts” [para. 82]. The Court found that the comments did not constitute an insult under German criminal law, because the “statements were not individual-related, but referred in each case generally to persons who apply for asylum or recognition as refugees” [para. 84].
The Court found that an incitement of hatred required a “particularly intense form” of action “with which the perpetrator goes beyond mere rejection or contempt” and which stirs up enmity by “showing a particular degree of spitefulness and crudeness or is characterized by a particularly hateful manner of expression” [para. 108]. The user’s comments were on specific reports which, in her view, gave reason to regard the specific behavior of certain foreigners as particularly reprehensible. Therefore, the Court held that the comments’ emphasis was on a “political debate that is linked to specific incidents and does not incite blind hatred based on a blanket condemnation of certain sections of the population without any rational point of reference” [para. 108]. The Court commented that the violation of human dignity meant that the “core of the personality” is affected “in such a way that the population group is described as fundamentally inferior in disregard of the principle of equality and therefore the right to live in the community is denied” [para. 109]. The Court stressed that the user’s statements had to be interpreted in their overall context and not isolated by their pure wording. It held that, unlike some other comments, the user had used concrete incidents as a cause for her statements, and so the user did not intend to generally incite against all foreign persons, but commented only on foreigners who plan or commit serious acts of violence and those that the user considered received unjustified social benefits. Accordingly, the Court held that the comments did not constitute an incitement of masses under section 130 StGB and that Facebook could not rely on criminal acts of the user to block her profile and comments.
In determining the circumstances under which Facebook could block or delete content on the grounds of its Community Standards, the Court found that Facebook and the user had a user agreement which included a continuing obligation for Facebook to provide its infrastructure to the user within the Community Standards. The Court examined the general terms and conditions under section 307 German Civil Code (Bürgerliches Gesetzbuch, BGB), and noted that this exercise required a consideration of freedom of expression under article 5 GG.
The Court did not give a final opinion on the question of whether Facebook is obliged to admit any opinion in its platform that is regarded as a permissible expression of opinion within the meaning of article 5 GG or whether it had a restricted discretion given its market position. However, it did state that the “Community Standards are worded in such a way that they offer – at least from the point of view of [Facebook] – a particularly broad possibility of intervention, but do not oblige it to intervene and, as a result, open the floodgates to an ultimately uncontrollable control of opinion” [para. 115]. When interpreting the Community Standards’ section on hate speech, the Court found that an average user “initially assumes that Facebook, in accordance with its well-known business model, basically offers everyone the opportunity to disseminate facts and opinions on all conceivable topics” and therefore “does not expect a […] serious restriction […] as a result of a far-reaching content control by [Facebook]” [para. 118]. It added that, for an average user, the wording implies that “Facebook only has such cases in mind in which blind hatred is to be stirred up, and not on the other hand, cases in which a factual comment is made and (also) contains a value judgment, albeit a drastically formulated one” [para. 118]. It found that the fact that Facebook “reserves the right to restrict the freedom of expression of its users well in advance of any content relevant under criminal law will not be apparent to the average user” [para. 118].
The Court noted that doubts in the interpretation of the Community Standards were to the detriment of Facebook (cf. sec. 305c (2) BGB), and held that, based on the Community Standards’ section on hate speech, comments with non-punishable content which are related to specific incidents and do not contain any defamatory criticism do not fall within the scope of the Community Standards.
Accordingly, the Court held that Facebook could not rely on its Community Standards to block the user’s profile and comments. It issued a preliminary injunction ordering Facebook to cease and desist from deleting the comments in its network and from blocking the user’s Facebook profile.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision’s finding that given Facebook’s business model, average users do not expect a serious restriction of their expressions by far-reaching content control, expands expression. The Court did not engage with the question of whether Facebook is obliged to admit any opinion in its platform that is regarded as a permissible expression of opinion or whether it has a limited discretion in light of its market position.
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