Hitler is a gamer? At least he is a blocking reason for Facebook!

There are judgments that you hardly believe exist. The Frankenthal Regional Court has made such a decision, and all I can really say about it is “All the varnish has been drunk, or what?

Following facts:

On Oct. 18, 2019, the plaintiff shared a visible post, originally published on “Der Postillon,” titled “Schrecklicher Verdacht: War Hitler ein Gamer?” and accompanied by a photo showing Adolf Hitler sitting on a sofa while apparently playing with an Xbox controller. Already here one recognizes the exact factual work of the court, because it writes in the judgement of a Gameboy.

Facebook then temporarily deleted the post and suspended the plaintiff’s user account on the grounds that the post violated their community standards. On the same day, the post was reviewed again, which resulted in a restoration of the deleted post as well as an unblocking of the user account still on 18.10.2019. The plaintiff took action against this temporary blocking.

the defendant may not prohibit the expressions of opinion protected by the Basic Law from the outset. In the context of a weighing, the rights of the plaintiff from Article 5 para. 1 GG, outweigh the rights of the defendant under Articles 12, 14 GG. In addition, the defendant was not allowed to rely on the terms of use and community standards published during 2018, as a violation of sec. 307 para. 1 sentence 1 of the German Civil Code (BGB) and against Section 308 no. 5 of the German Civil Code (BGB) and the consent of the users would be forced. Further, the contribution at issue does not violate Defendants’ community standards. The plaintiff had merely shared another’s contribution without adopting the content as his own. The claim for data rectification follows from Article 16 sentence 1 of the GDPR, since the data storage is based on the assumption of a breach of the contractual terms. Due to the unlawfulness of the blocking, the defendant was obliged to lift it. Since a subsequent revocation was not possible, the plaintiff was entitled to a declaration of illegality in this respect. As a result of the unlawful deletion, the contribution should also be restored. The injunctive relief follows from §§ 1004 para. 1, 241 para. 2 BGB, whereby the risk of repetition was already indicated on the basis of the first offense. In addition, the arbitrary and non-transparent removal of contributions also constitutes a risk of repetition.

The plaintiff also asserted a claim for information with regard to the involvement of third-party companies and the involvement of the German government, as well as a claim for damages resulting from sections 280 and 249 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) due to the violation of the ideal interests of the party concerned.

The court also saw no infringement of the Community standards in the temporary blocking, but above all did not want to recognize any risk of repetition:

Even if the temporary deletion of the post and blocking of the account were not considered to be covered by the community standards – which the court assumes, however – there is no risk of repetition. The specific conduct of the defendant, which restored the disputed post on the same day and unblocked the user account, shows that the defendant impliedly acknowledged that the disputed post did not violate its community standards. It is therefore not to be expected that the defendant will delete the same post again or take it as a reason to block the plaintiff’s user account again (LG Köln, Urt. v. 13.05.2019 – 21 O 283/18, Annex B31; LG Karlsruhe, judgment of 04.07.2019 – 2 O 160/18, Annex B33). There is already no indication whatsoever why the defendant should review the contribution again at all and then come to a different conclusion when reviewing it again.

However, the following two comments by the court are also interesting:

(a) First of all, the plaintiff cannot rely on the fact that he does not adopt the content of the disputed contribution as his own by sharing it. Already conceptually, sharing is to be considered as implied attribution and aims at pointing out the shared contribution. Something else could only be assumed if, in the context of sharing, a distancing of the sharing party from the content of the shared contribution is made by means of a supplementary contribution. Then, sharing could be considered merely a reference to foreign content and opinions. In the present case, however, there is a lack of any statement by the plaintiff on the shared contribution. This does not indicate any distancing. Rather, in the case of sharing without a supplementary comment, it must be assumed that the sharer wishes to refer solely to the shared contribution and makes it his own.

But to come to the actual topic:

(b) An image of Adolf Hitler as the leader of the NSDAP, which is undoubtedly a terrorist and criminal organization within the meaning of the Community Standards, must always be examined to determine whether the image constitutes support for that criminal organization. In the present case, there is no critical examination of the person of Adolf Hitler, nor is there an obviously ridiculous portrayal. Rather, the depiction of Adolf Hitler playing Game Boy on the sofa can be seen as trivialization. According to the OLG Munich (decision of 30.11.2018 – 24 W 1771/18, GRUR-RS 2018, 50857), an illustration together with verbal contributions without any distancing is to be regarded as support for Hitler or the NSDAP. From a reasonable and unbiased point of view, the disputed contribution could thus certainly be understood as hate speech in the context of an initial review. The temporary deletion is therefore in no way to be regarded as arbitrary, but was prompted by the plaintiff’s contribution. Due to the hate speech in question, the defendant was entitled to temporarily block the post as part of a quick reaction. In addition, it must be granted a certain degree of discretion within the framework of the initial assessment without this immediately entailing further legal consequences in the event of an incorrect initial assessment.

The full reasons for the ruling can be found here. One can argue a lot about the details of the ruling, especially whether Facebook is allowed to automatically delete posts and block accounts if they are clearly satire. No matter if it is only a few hours. Honestly, however, I also do not want to have stuck the skin of the court. A lawsuit for a short blocking of a Facebook account, with completely unsubstantiated 1500.00 euros in damages, an action for information regarding the involvement of the federal government, many other questionable applications and a plaintiff who has already paid 1500.00 euros in legal fees before the court, could well have been the reason that the chamber has perhaps not assumed the necessary seriousness of the actually interesting legal issues.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.