Liability of the Facebook account holder for infringements of third parties' rights

In a decision(OLG Frankfurt a.M., judgement of 21.07.2016, ref.: 16 O 233/15), theOLG Frankfurt a.M. dealt with the question of whether and when an account holder of a Facebook account is liable for legal infringements committed by a third party via his Facebook account.

The Higher Regional Court (OLG) Frankfurt a.M. had to decide a case in which a person had committed personality violations via the Facebook account of another person. The OLG Frankfurt a.M. had to decide whether the owner of the Facebook account was liable for the personality violations of the third party via his Facebook account.

The OLG Frankfurt a.M. has ruled that the question of the liability of the owner of a Facebook account in the event of its infringing use by a third party is assessed according to the principles already established by the BGH in the so-called "Halzband" decision for the liability of the private owner of an eBay member account in the event of its misuse by a third party.

"According to this, the private owner of a member account on eBay who has not secured his access data from third-party access must allow himself to be treated as having acted himself if a third party obtains the access data of this member account and uses it to infringe property rights and violate competition without the account owner having caused or tolerated this.

A breach of duty in this respect in the custody of the access data for the member account constitutes a separate ground of attribution independent of the principles of "Stoererhaftung" (Breach of Duty of Care).

As a reason for the liability of the person who did not keep his contact data under lock and key, the BGH saw the danger it created that ambiguities could arise for the traffic as to which person had acted under the relevant member account on eBay, thus considerably impairing the possibilities to identify the person acting and, if necessary, to make a claim against him - in a legal transaction or in tort. In this respect, it is significant that the control data and the password of a member account on eBay as a special means of identification enable trading under a certain name to the outside world. In view of this, in the opinion of the BGH, there is a general responsibility and obligation of the owner of a member account on eBay to keep his contact data under lock and key in such a way that no one gains knowledge of them.

The same applies to a Facebook member account.

This has an identification function comparable to an eBay account, so that there is a basis for treating the owner of a certain Facebook account by way of an irrebuttable presumption as if he had posted the postings there himself. In this respect, the appeal rightly claims that there are no relevant differences between an eBay account and a Facebook account that would require a different treatment. The Facebook account is also assigned to a specific user. In particular, the requirements for due diligence imposed on its owner in the terms of use are almost identical to those for eBay."

In summary, according to current case law, an account holder of an internet portal must always keep his access data carefully and secret. Otherwise, he is liable for infringements of rights and acts of third parties that they commit via his internet account.

Every owner of an Internet account on eBay, Amazon, Facebook, Twitter, Instagram and/or other portals or online shops should therefore think very carefully about whether and, if necessary, to whom they make their access data available. In case of doubt, misconduct on the part of the third party will lead to the account holder's own claim.

The undersigned will be happy to answer any questions you may have on this subject.


Goldberg Lawyers 2016

Lawyer Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)