Facebook censorship ruled unconstitutional — Germany

Update 201 81 09 14: Made addendum , to identify that FB blocked Claudia Kirn

Translation of Zeit Online Article

Re: Facebook Community Standards — Facebook censorship ruled unconstitutional — A landmark decision by the Higher Regional Court in Munich, Germany — Alas, it is as of now a temporary injunction against Facebook.

–Start of translation–

Higher Regional Court Munich [Germany]

Facebook may not remove comments at will

The social network must respect the freedom of expression when deleting contributions. The Higher Regional Court of Munich decision to that end thereby supported the opinion of a female AfD [AfD: Alternative for Germany] politician.

6. September 2018, 19:56 / Source: ZEIT ONLINE, dpa, vk / 85 Comments [in German]
Caption: For Facebook, the same rules apply as for government agencies, decides the OLG Munich [Higher Regional Court Munich].

For Facebook, the same rules apply as for government agencies, decides the OLG Munich [Higher Regional Court Munich].

In its handling of comments, Facebook is bound to the same degree of freedom of expression as state agencies. Thus decided the Higher Regional Court of Munich (OLG) already about a week ago (file number 18 W 1294/18) and issued a temporary injunction. It is therefore not permissible for the network to set a narrower framework for the admissibility of expressions than the state.

The occasion for the hearing was a comment by female AfD politician Heike Themel, which Facebook had deleted with reference to its own community standards. Because of a report on border controls in Austria, Themel had a heated debate with some users of the platform. During that she had been insulted. She had then written to a user who had supported this statement with a “Like”, writing to her, inter alia, “I can no longer argue with you and do you justice. You are unarmed and that would not be particularly fair of me.”

With the deletion of this contribution, Facebook had done injury to its contractual obligation, decided the OLG. The social network is obliged to take into account the rights of all users, in particular the constitutional right to freedom of expression. If Facebook were to be permitted, “based on a ‘virtual house right’ (…) to delete the contribution of a user (…) even if the contribution does not exceed the limits of permissible freedom of expression”, then such an approach would not be compatible with the German constitutional Law.

Inadmissible discrimination

In its terms and conditions, Facebook reserves the right to delete comments “if we believe they violate the statement or our guidelines.” In the opinion of the judges, this provision discriminates against users in an inadmissible manner. After all, the deletion of comments would thereby ultimately be placed at the discretion of the company.

The lawyer Joachim Steinhöfel, who represented the AfD politician in the lawsuit, was satisfied with the decision of the court. He called the temporary injunction “a milestone in the fight for freedom of expression in the social media.”

A spokeswoman for Facebook said that the injunction is currently not yet available to the enterprise: “As soon as we receive it, we will examine it.” Facebook were a platform where people across the world, across borders, can exchange and share content that matters to them. However, this should not be done at the expense of the safety and well-being of others.

–End of Translation–

German-language source of translated article

Translated by W. Schneider (with the help of Google Translate and using https://dict.leo.org/german-english/ for final edits)

Addendum 2018 09 14

2018 09 13, the founder of the German FB discussion forum >Diskussionsgruppe<, Claudia Kirn, was barred from using Facebook. Here is the announcement of that incident of FB censorship:

FB blocked Claudia Kirn, founder of >Dskussionsgruppe<

FB blocked Claudia Kirn, founder of >Diskussionsgruppe<


Translation: “Claudia was obviously blocked by Facebook. The suspicion is close that she was reported. Does the snitch have at least enough ass in his pants? Who reported a group founder?”

Apparently, there is some (non-identified) evidence that Claudia Kirn blocked someone from her discussion forum, because the individual had insulted her in an exchange of opinions.

The subsequent discussion involves much speculation, but no evidence at all, on who the culprit was.

The interesting aspect of that discussion is that much of it revolves around what and what not to do to avoid violations of Facebook’s nebulous community standards. Still, even though the recent ruling by the Higher Regional Court of Munich, prohibiting Facebook from blocking any of its subscriber due to its community standards that do not comply with what applies in respect to standards of conduct for government agencies, Facebook apparently ignored the ruling of the Court.

That was pointed out in the referenced discussion thread, but not one of the participants appeared to pay any attention to the likelihood that the blocking by FB of Claudia Kirn was possibly a breach of the law, in violation of the recent court order by the Higher Regional Court of Munich.


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