According to the judgments of the Federal Court of Justice dated July 29, 2021, III ZR 179/20 and 192/20, Facebook's currently applicable terms and conditions from April 19, 2018, are invalid and do not permit the deletion of user posts or account suspensions for violations of communication standards.
Plaintiffs Posted Hate Speech
According to Facebook's terms of use, effective since April 19, 2018, violations of the "Community Standards" are prohibited. These standards prohibit "hate speech" as further defined therein. In the proceedings BGH III ZR 179/20, the plaintiff posted the following contribution: "It's insane, I can't recall an assassination committed by so-called 'Reichsbürger'. In contrast, there are the murders by Islamic immigrants, who were observed, but nothing could be done about it. German people are criminalized because they have a different view of their homeland than the regime. Migrants can murder and rape here, and nobody cares! I would wish for the domestic intelligence service to take decisive action."
In the proceedings III ZR 192/20, the plaintiff commented on a third party's post, which included a video showing a person with a migration background refusing to be checked by a female police officer, as follows: "What are these people doing here in our constitutional state? No respect. No regard for our laws. No respect for women. THEY WILL NEVER INTEGRATE HERE AND WILL FOREVER BE A BURDEN ON TAXPAYERS. THESE GOLDEN NUGGETS CAN ONLY DO ONE THING: MURDER. STEAL. RIOT. AND MOST IMPORTANTLY. NEVER WORK."
Deletion of Hate Speech and Account Suspensions by Facebook
Facebook deleted these statements in august 2018, as they violated the prohibition of "hate speech," and temporarily suspended the user accounts. The plaintiffs argued that Facebook was not entitled to delete their posts and suspend their user accounts. In the first two instances, they were largely unsuccessful. The Federal Court of Justice has now partially overturned the appellate judgments and ordered Facebook to reactivate the plaintiffs' deleted posts. Furthermore, in the proceedings III ZR 179/20, the Federal Court of Justice ordered Facebook to refrain from re-suspending the plaintiff for posting her contribution or deleting the post.
Facebook's Terms and Conditions Invalid
Facebook's terms and conditions are invalid due to a violation of Section 307 Paragraph 1 of the German Civil Code (BGB) on account of unreasonable disadvantage. Although the terms and conditions were effectively incorporated into the user agreement by clicking the "I agree" button, and Facebook is generally permitted to delete hate speech and suspend user accounts for violations, when balancing the mutual interests and the fundamental rights of users to freedom of expression under Article 5 of the Basic Law (GG) and Facebook's rights under Article 12 of the Basic Law, Facebook is obligated to inform the affected users, at least retrospectively, about the removal of a post, and in advance about an intended account suspension, stating the reasons, and to grant the affected users the opportunity for a counter-statement.
Source: Press release of the Federal Court of Justice No. 149/2021
We specialize in IT/IP and data protection law. If you are affected by suspensions of your social media accounts or wish to take action against posts by other users, we would be pleased to advise you.
GoldbergUllrich Lawyers PartGmbB 2021
Christopher Pillat, LL.M. (Intellectual Property Law)
Attorney-at-Law
