Content Regulation / Censorship, Digital Rights
Netchoice v. Paxton
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The Administrative Court of Mainz, Germany, found that blocking a Facebook user from the social media page of a public broadcaster was lawful because he posted defamatory comments about other users’ political and sexual orientations. The claimant sued the German public service broadcaster ZDF (Zweites Deutsches Fernsehen, Second German Television) after it had blocked his profile on its Facebook pages for making discriminatory comments towards other users. The Court held that ZDF—as part of the indirect state administration—must respect fundamental rights, but that the general right of personality of other users prevails over the claimant’s right to access the Facebook pages and freedom of expression. Thus, the Court held, ZDF could lawfully block his profile based on its “virtual domiciliary rights”.
In April 2017, a Facebook user posted several defamatory comments on the German public service broadcaster Zweites Deutsches Fernsehen’s Facebook pages “ZDF” and “ZDF+”. Among other things, he called other users “subhuman” (Untermensch), “redfascist”, compared them to Julius Streicher, and referred to homosexuality as a genetic defect. Subhuman is a National Socialist term “aiming at exclusion and inhuman degradation,” [p. 21] while Julius Streicher was the founder, owner, and publisher of the National Socialist anti-Semitic newspaper “der Stürmer”.
Consequently, ZDF blocked the user on April 27, 2017, from its Facebook page: “ZDF+”. The user could not comment on the Facebook page anymore, but he was able to read it. The user requested ZDF on April 27, 2017, to reactivate his profile on the “ZDF+” Facebook page.
The user filed a lawsuit, against ZDF, on July 12, 2017, requesting the possibility of participating in the comment sections of the Facebook pages “ZDF” and “ZDF+”, arguing that his comments were protected by freedom of expression under Art. 5 para. 1 of the German Basic Law (GG, Grundgesetz).
The defendant asked the court to dismiss the action, arguing that it was not reasonable for ZDF to grant the claimant access to the pages considering his continuous violations of the “Netiquette”, and that ZDF was entitled to block access based on its “virtual domiciliary rights”.
The main issue the Fourth Chamber of the Administrative Court of Mainz had to resolve was whether ZDF could lawfully block the claimant from its Facebook pages—“ZDF” and “ZDF+”—, after he made discriminatory remarks against other users on the platform.
The claimant held that he was unlawfully blocked from the defendant’s pages. He also asserted that his critical comments on the pages were deleted unlawfully. He argued that ZDF’s pages were public property and that based on the German Interstate Broadcasting Contract (Rundfunkstaatsvertrag), ZDF must make all of its content “available to the public in full and without restriction and must not restrict it for anyone.” [p. 5] The claimant held that the Facebook pages were part of ZDF’s content. He considered those pages particularly important because of their comment and discussion functions, and the “enormously large outreach of Facebook.” [p. 5] He added that the blocking of his profile violated his right to freedom of expression under Art. 5 para. 1 GG, and that his comments were interpreted arbitrarily. He also accused ZDF of having double standards as it only acted against right-wing extremism but not against left-wing extremism.
For its part, the defendant claimed that the relationship between ZDF and the claimant was not governed by public law but by civil law, and that, in consequence, the lawsuit was not admissible before an Administrative Court. Moreover, ZDF argued there was no individual right to access its Facebook pages. It also stated that the blocking was lawful because the claimant had continuously insulted other users which made it unreasonable to grant the claimant access to its pages. ZDF stated that the claimant was still able to access the broadcast company’s offer under ZDF’s webpage without restriction.
At the outset of its analysis, the Court found that the relationship between the parties was governed by public law and, thus, the lawsuit was admissible because the Facebook pages, managed by a public broadcasting service, constituted a virtual public facility.
The purpose of those pages, the Court held, was to provide communication and interaction between the defendant and the users, as well as the communication of users with each other. Referring to the jurisprudence of the Administrative Court of Munich, Germany (VG München, judgment of October 27, 2017 – M 26 K 16.5928), the Court affirmed that ZDF has a “virtual domiciliary right” regarding its Facebook pages. By blocking the claimant’s profile, according to the Court, the defendant used its “virtual domiciliary right” to secure the purpose of the page.
The Court concluded that the claimant had no right to access the aforementioned Facebook pages. For the Tribunal, although ZDF did interfere with the claimant’s right to freedom of expression, it did not violate it.
The Court held that, in principle, the defendant had an obligation to grant equal access to its pages based on Art. 3 para. 1 GG—the general principle of equal treatment or non-discrimination. As part of the (indirect) state administration, ZDF was obliged to respect fundamental rights in its relationships with third parties. Nevertheless, the claim to access the pages, based on Art. 3 para. 1 GG, is limited by the purpose of the Facebook pages. Since the claimant insulted other users, he continuously acted against this purpose and violated the “Netiquette”.
The Court also considered that ZDF itself could invoke the freedom of broadcasting based on Art. 5 para. 1 GG—that also protects freedom of programming. Therefore, the defendant could freely decide the selection and design of its programming, which includes its decision to block users. The extent of the margin of appreciation ZDF enjoys in these decisions was left open by the Court, as the blocking remained lawful even under the strictest proportionality test.
The Court, applying a proportionality test, stated that the blocking, under these specific circumstances, served a legitimate purpose—namely the protection of the personality rights of third parties, and the protection of the communication and interaction on the Facebook pages. Moreover, it highlighted that the claimant had, through his comments, “repeatedly and seriously violated the personal rights of third parties,” [p. 18] which are protected by Art. 2 para. 1, Art. 1 para. 1 GG, and that those violations cannot be justified, even considering the freedom of expression of the claimant.
The Court stressed that criticism must be accepted, especially in the “political battlefield” (Meinungskampf). However, referring to the German Constitutional Court (BVerfG), the Court underscored that some of the claimant’s comments met the threshold of abusive criticism (Schmähkritik) and veered into insults (Formalbeleidigung). In this case, for the Court, the protection of personality rights prevailed over freedom of expression, following the precedent set in BVerfG, Nichtannahmebeschluss of May 12, 2009 – 1 BvR 2272/04 -. WRP 2009, 943. Because of the significance and the continuity of the claimant’s violations, the Court concluded that blocking him was a proportional and lawful measure.
Consequently, the Administrative Court of Mainz dismissed the claimant’s action.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Court deemed the claimant’s comments to be unlawful, but came to this conclusion after applying a strict proportionality test and only because the claimant violated other users’ personality rights. It held that Facebook pages managed by public broadcasting channels are (virtual) public utilities and that these channels must respect fundamental rights in their moderation decisions. Ultimately, the Court held that only when users continuously act contrary to the purpose of the pages, the broadcaster could block them based on its “virtual domiciliary rights”.
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