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The plaintiff is a user of a social network of the defendant. The latter changed its terms of use in 2018, to which the plaintiff agreed by mouse click in order to continue using the defendant’s service. The defendant subsequently initially removed two politically motivated posts directed against people with a migration background for violating these terms of use because they were classified by it as hate speech and blocked the account for certain functions.
After further similar posts, which the defendant also classified as hate speech, it removed the page operated by the plaintiff and temporarily blocked the plaintiff’s private profile twice for 30 days. The plaintiff considers the terms of use to be invalid and the deletion and blocking to be unlawful. He is therefore suing for the site to be unlocked and restored.
The landgericht dismissed the action.
In detail:
By registering on the social network, the plaintiff entered into a contract with the defendant including the terms of use. The current (stricter) terms of use for “hate speech” also apply after the plaintiff has agreed to them by confirming with a mouse click. This is not affected by the fact that the plaintiff had no other option but to confirm if he wanted to continue using his account. In fact, it would have been just as possible for him to use another social network as it would have been for him not to use such a network at all, since maintaining relationships with friends is also possible offline.
Moreover, the terms of use are general terms and conditions (GTC) which, in the opinion of the Board, also do not violate the transparency requirement of Section 307 (1) of the German Civil Code applicable to GTC. 1 sentences 1 and 2 of the German Civil Code. The court found that the terms of use were written in simple language and were easy to understand, and in particular that they explained in detail what the defendant meant by “hate speech”. It continues to become clear that not only criminal statements fall under “hate speech.”
Furthermore, the court sees no need in this context to attach a specific legal consequence to each violation in the terms of use. The court accepts that the defendant has leeway here, since according to its terms of use, the defendant does not only base its decision on the individual violation of the user, but also takes into account the user’s prior usage behavior when making its decision.
According to this decision, the terms of use also do not violate the principle of freedom of opinion, since this is opposed by the virtual domiciliary right of the defendant. The defendant must be granted such a virtual domiciliary right, as it must avoid the risk of being held liable by the authorities, among others, for statements made by users on the social network.
Therefore, the defendant may also prevent statements that fall within the borderline of legality. It should also be taken into account that posts that may be perceived by a large number of other users as extreme, unnecessarily provocative and intimidating may cause the other users to stop using the social network. This would then have a negative effect on the exchange of opinions intended by the defendant and its business model. Therefore, the defendant cannot be generally prohibited from making deletions and blockings, even if these do not exceed the limits of permissible expression of opinion.
The defendant does not have to make its network available for hate speech, even taking freedom of speech into account.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
