Facebook: T&Cs do not allow account blocking and deletion of hate posts

According to the rulings of the Federal Court of Justice v. 29.07.2021, III ZR 179/20 and 192/20, Facebook's currently applicable terms and conditions of 19.04.2018 are invalid and do not allow for deletions of user posts and account blocking in case of breaches of communication standards.

Plaintiffs posted hate mail

According to Facebook's terms of use in the version valid since 19 April 2018, it is not allowed to violate the "community standards". These prohibit "hate speech", which is defined in more detail there. In the BGH case III ZR 179/20, the plaintiff posted the following: "It's crazy, I can't remember an assassination that so-called Reich citizens have committed. In contrast to this, the murders of Islamic immigrants, which were observed, but nothing could be done about them. German people are criminalised because they have a different view of their home country than the regime. Migrants can murder and rape here and nobody cares! I would like to see a crackdown by the Office for the Protection of the Constitution."

In case III ZR 192/20, the plaintiff commented on a third party's post containing a video in which a person with a migration background refuses to be controlled by a female police officer as follows: "What are these people looking for here in our constitutional state. no respect. no respect for our laws. no respect for women. THEY WILL NEVER INTEGRATE HERE AND WILL FOREVER BE ON THE TAXPAYER'S POCKET. THESE GOLD PIECES CAN ONLY DO ONE THING: MURDER. STEAL AND RIOT. AND MOST IMPORTANTLY. NEVER WORK."

Deletion of hate posts and account suspensions by Facebook

Facebook deleted these posts in August 2018 because they violated the ban on "hate speech" and temporarily blocked the user accounts. The plaintiffs claimed that Facebook had not been entitled to delete their posts and block their user accounts. They were largely unsuccessful in the first two instances. The BGH has now partially overturned the appeal rulings and ordered Facebook to unblock the plaintiffs' deleted posts. Furthermore, in case III ZR 179/20, the BGH ordered Facebook to refrain from blocking the plaintiff from posting her post again or from deleting the post.

Facebook's terms and conditions invalid

Facebook's terms and conditions are invalid due to a violation of section 307 (1) of the German Civil Code (BGB) due to unreasonable disadvantage. It is true that the terms and conditions were effectively included in the user contract by Facebook by clicking on the "I agree" button and that Facebook is in principle also allowed to delete hate posts and block user accounts in case of violations. When weighing the mutual interests and the fundamental rights of users to freedom of expression under Article 5 of the Basic Law and the rights of Facebook under Article 12 of the Basic Law, Facebook is, however, obliged to inform the users concerned about the removal of a post at least retrospectively and about an intended blocking of the user account in advance, stating the reasons, and to give the users concerned the opportunity to make a counterstatement.

Source: Press release of the Federal Supreme Court No. 149/2021

We are specialised in IT/IP and data protection law. If you are affected by the blocking of your social media accounts or if you want to take action against the posts of other users, we will be happy to advise you.

GoldbergUllrich Rechtsanwälte PartGmbB 2021

Christopher Pillat, LL.M. (Intellectual PropertyLaw)