Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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Closed Contracts Expression
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The Regional Court in Heidelberg, Germany held that Facebook’s Community Guidelines met the requirements of transparency and non-discrimination under German contractual law and adequately considered users’ rights to freedom of expression. After a Facebook user had posted an anti-integration message, Facebook deleted the post and suspended the user’s account for 30 days. The user then sought a preliminary injunction against Facebook, arguing that Facebook’s Community Guidelines infringed German law and her right to freedom of expression. The Court held that Germany’s Basic Law predominantly governs relationships between individuals and the State and that, even though the Basic Law can be applied to a limited extent to relationships between private persons, the Basic Law’s protection of freedom of expression had not been infringed in this case.
In July 2018, a Facebook user commented below a post concerning integration of migrants in Germany: ‘Respekt! Das ist das Schlüsselwort! Für fundamentalistische Muslime sind wir verweichtliche Ungläubige, Schweinefresser und unsere Frauen sind Huren. Sie bringen uns keinen Respekt entgegen.“ (Respect! That is the keyword! Fundamentalist Muslims regard us as soft grown heathens, pig-eaters and our women as whores. They do not respect us.)
On July 16, 2018, Facebook deleted the user’s comment and blocked her profile for 30 days. On the same day, the user sent an e-mail to Facebook asking them to reverse the actions because she considered them unjust. She argued that her comment did not violate Facebook’s community guidelines, and that she found those guidelines to be unlawful under section 307 of the German Civil Code because they were non-transparent and constituted inappropriate discrimination against users.
After Facebook refused to reverse their decision the user sought a preliminary injunction before the Regional Court in Heidelberg.
The Regional Court in Heidelberg delivered its judgment on August 28, 2018. The central issues before the Court were whether Facebook was entitled to remove the post and block the user and whether Facebook’s community guidelines were consistent with section 307 of the Civil Code. Sections 305 to 310 of the Civil Code govern contractual terms and conditions.
The Court held that the user’s request could only be based on the contractual relation between her and Facebook and Facebook’s community guideline as general terms and conditions are effectively incorporated within that relationship.
The Court examined Facebook’s community guidelines in relation to sections 305 to 310 and noted that the guidelines clearly list the type of expression which is not protected, namely “hate speech” and define the boundaries of what can be considered hate speech. In addition, the guidelines indicate the kind of consequences each user must face if they violate community standards. Accordingly, the Court held that the guidelines cannot be considered non-transparent. The Court also held that the guidelines did not discriminate against users inappropriately.
The Court rejected the user’s argument that her right to freedom of expression, under article 5.1 of the Basic Law, had been infringed. The Court held that Basic Rights are merely defensive rights people have against state interference and that, although Basic Rights must be considered in disputes between private parties under the principle of indirect third-party effect of Basic Rights, there was no violation in the present case.
The Court found that Facebook’s community guidelines adequately take into consideration the right to freedom of expression and that, even though polemic aggressive expressions are protected under article 5.1, Facebook (as a private party) does not have to grant all of its users the right to freedom of expression to the fullest extent.
Accordingly, the Court held that Facebook’s actions in deleting the comment in question and blocking the user’s account for 30 days were permissible.
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