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Facebook: New rulings on deletion claims

Recently, there have been some decisions on deletion claims against Facebook, which I would like to present here.

  1. Amount in dispute:

For example, the Frankfurt am Main Regional Court ruled that the amount in dispute in a claim for deletion against Facebook would be 3,000 euros.

“This restriction on his freedom of communication, however, is limited to the platform at A. He can continue to communicate in other ways – through letters to the editor, e-mails, other platforms, telephone calls, etc., so he is only prevented from communicating with others in a certain way, based on the decision of his own chosen contractor.

Therefore, it does not matter how many other users are active at A. The deletion of a post and the blocking of the user for 30 days cannot be compared to the sending of unsolicited e-mails, to which the applicant refers, either, especially since it is based on an automated process.

The fact that case law assumes an amount in dispute of at least €3,000 for the sending of unsolicited e-mails, to which the applicant refers, emphasizing the small amount of time required to read such an e-mail in contrast to the permanence of the deletion or 30-day duration of the block, also does not justify a higher amount in dispute in the opinion of the Senate, since this involves an encroachment on the right of personality by third parties, but in the present case it involves the conduct of the applicant’s contractual partner.”

However, this amount in dispute ranks rather in the lower range of what other courts have set so far.


2. burden of proof

The Cologne Higher Regional Court, on the other hand, ruled that the burden of proof lies with the party taking action against Facebook for account blocking or the deletion of a post. The account holder must prove that the content is lawful and that the blocking or deletion violates the account holder’s rights.

Even though the content was, how could I be otherwise, about national-socialist content, this decision is quite exciting, because while the court accuses the plaintiff of not having proven that the comment was meant to be satirical, Facebook also does not seem to have proven that the content was illegal.

In these and similar decisions, the Network Enforcement Act arguably casts its shadow, leaving lawyers and civil libertarians scratching their heads at least a little.


3. NetzDG

And this is exactly what can be seen in the current decision of the Stuttgart Higher Regional Court. Because Facebook blocked a posting with the content “As Nostradamus said: Over`s sea they will come like the locusts, but they will not be animals…How right was the man”.

The author tries to defend himself against the blocking, but fails. The court reasoned its decision as follows:

“It is an expression of opinion at least hard on the border of inadmissible defamatory criticism. Defamatory criticism does not enjoy the protection of Art. 5 para. 1 P. 1 GG. It presupposes that beyond polemical and exaggerated criticism, the focus is no longer on the substance of the dispute, but solely on defamation of the person. However, if the comments are made in a public dispute, they only constitute defamatory criticism in exceptional cases (…).

Moreover, it is a statement that in any case gives rise to an examination of Section 130 of the Criminal Code (cf. on the conviction of a professional soldier for incitement of the people by A.-.comments with designation of criminal refugees, among other things, as “vermin” OLG Hamm, decision of 26.09.2017 – 4 Rvs 103/17; on criminal liability for incitement of the people in the case of ambiguous A. statements about three refugee children who are alleged to have stolen cherries from a garden, cf. OLG Karlsruhe, decision of 26.07.2018 – 2 Rv 4 Ss 192/18, juris Rn). This means that the respondent is at least at risk of a claim under Section 4 of the NetzDG.”

4. deletion of automated places on Facebook

The latest ruling is not about the current refugee debate, but concerns an owner of a barbershop. In its favor, the 6th Civil Chamber of the Regional Court of Hanover ruled that Facebook was prohibited from automatically creating a “location” and even adding photos of the store, the phone number of the hairdresser and other data. The owner himself was and is not logged into Facebook and therefore could not even delete the content himself.

After Facebook ignored the decision of the Regional Court of Hanover and the page went back online, albeit probably automated again, the court now imposes an administrative fine of a handsome 50,000 euros, which in my experience is clearly at the upper limit of what courts usually impose as first administrative fines.

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Marian Härtel

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.


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