Case Summary and Outcome

The German Federal Administrative Court (Bundesverwaltungsgericht, BVerwG) held that the defendant, the Mitteldeutscher Rundfunk (MDR), a German public service broadcaster, could lawfully delete comments—not related to its programming—on its Facebook page. The case was brought by a Facebook user after MDR deleted their comments on its Facebook page, arguing they were not related to its programming. The Court reasoned that the deletion was an interference with the claimant’s freedom of expression protected under Art. 5 para. 1 of the German Basic Law (Grundgesetz, GG), but the interference, with one exception, was justified. According to the Court, internet fora offered by a public service broadcaster must be related to the broadcaster’s programming. This restriction also extends to users’ comments on the broadcaster’s Facebook page.

Facts

At the beginning of 2018, Mitteldeutscher Rundfunk (MDR), a German public service broadcaster, deleted 13 of the claimant’s comments from its Facebook page under the argument that the comments did not refer to the broadcaster’s programming. In most of their comments, the plaintiff didn’t refer to a specific TV show but complained about the deletion of their comments.

On August 14, the claimant sent MDR an e-mail requesting it to reinstate their comments. On August 17, 2018, the German broadcaster informed the claimant in a letter that this was technically not possible.

Subsequently, on August 21, 2018, the claimant filed an action before the Administrative Court of Leipzig, Germany (Verwaltungsgericht Leipzig) arguing that MDR’s deletion of their comments was unlawful. This court dismissed the action on September 11, 2019, except for one comment that was related to a particular TV show of the broadcaster. The claimant appealed this decision before the Higher Administrative Court of Bautzen, Germany (Oberverwaltungsgericht Bautzen) which confirmed the prior judgment and dismissed the appeal on September 16, 2019. Both courts found that MDR was entitled to delete the comments based on its “virtual domiciliary rights” because the comments were not broadcast-related.

The claimant appealed again before the German Federal Administrative Court.

Decision Overview

The 6^th Senate of the Federal Administrative Court issued a decision on the matter on 30 November 2022. The main issue before the Court was whether the MDR could lawfully delete the user’s comments on its Facebook page, taking into consideration that said comments were not related thematically to the defendant’s broadcast programming.

The user held that the deletion of their comments on MDR’s Facebook page was unlawful. They claimed that there was no need for the comments to be broadcast-related. Even if sections 11d and No. 17 of the Annex of the German Interstate Broadcasting Contract (Rundfunkstaatsvertrag, RStV) require that internet fora by public service broadcasters is broadcast-related, this requirement does not extend to users’ comments on MDR’s Facebook page. According to the claimant, MDR, therefore, lacked the legal authority to delete their comments even if they were not broadcast-related, especially as they are not relevant under criminal law.

The defendant, on its part, claimed that the deletion was lawful, as argued by lower courts.

At the outset of its analysis, the Court said that internet fora by public service broadcasters, such as a Facebook page, must be broadcast-related, including its comments. The Court argued that this duty arises from section 11 para. 2 sent. 1 No. 2, and section 5 sent. 4 of the RStV (old version), and No. 17 sent. 1 of its Annex. These norms, the Court held, seek to limit the mandate of public service broadcasters regarding digital media, and to protect private media outlets from unfair competition. Thus, the Court concluded that to fully serve this purpose, not only the content that originates from the broadcaster but also users’ comments must be related to the broadcasters’ programming. Hence, the obligation of the broadcaster to limit its services is complemented by its authority to delete non-broadcasting-related comments. In opposition to the lower courts’ reasonings, the BVerwG did not refer to virtual domiciliary rights as the legal basis for the removal of comments.

The Court held that the deletion of a user’s comment was an interference with their right to freedom of expression, as protected by Art. 5 para. 1 GG. However, the Court balanced the competing interests of the user, on the one hand, and of private publishers or media companies, equally protected under Art. 5 para 1 GG, on the other. It emphasized the importance of private media companies, which are protected by the legal limitations to public service broadcasters, to achieve a pluralistic and diverse media landscape. In light of this, the Court reasoned that the comments’ removal had little effect on the user’s expression, as they could easily express opinions on other fora and that the state was not obliged to create general fora for the exchange of opinions.

Accordingly, the Court decided that MDR was authorized to lawfully delete those comments—not related to its programming—from its Facebook page. However, The Court said that the user’s comment on a news piece regarding police raids against right-wing extremists, which referred to the topic of Islamic extremism (“Will the Strasbourg attacker be found?”), was protected by freedom of expression since it had a connection to the news item. Hence, the Court concluded, its deletion was unlawful.