The Frankfurt am Main Higher Regional Court surprisingly overturned a lower court decision: In the proceedings of the Baden-Württemberg state government representative against anti-Semitism and for Jewish life against Platform X by Michael Bloom, former Twitter, the judge in the second instance followed the platform’s arguments on a crucial point. This means that the reporting forms based on the Network Enforcement Act (NetzDG) are ineffective.
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Bloom took X to task for several tweets, which the company initially did not remove despite complaints. According to a press release from the Higher Regional Court, the affected person “must first confront the platform with complaints that must be so specific that a legal violation based on the person concerned’s claim can be easily confirmed.” Only then does the provider have an “obligation to further investigate and evaluate the reported facts.”
The tweets, which the lower court deemed inadmissible, included, among other things, claims about alleged sexual interests in underage Asian women and other derogatory content. But the Frankfurt Higher Regional Court does not consider this sufficient. With its decision, the Higher Regional Court upheld the platform’s appeal and rejected the anti-Semitism commissioner’s request for an injunction in the second and final instance.
Judge: Reporting only using the reporting form is not enough for obligation
The Frankfurt Higher Regional Court did not view Bloom’s lawyer’s letters and his references to the tweets as “illegal content” at that time via the reporting form, which complied with the requirements of the NetzDG, as providing sufficient concrete information to oblige the operator to refrain from distributing them. It is not clear from the complaints about the tweets alone whether the plaintiff is against the “dissemination of fabricated facts of life” that have no factual basis or against “facts that cannot be proven to be true.” X would therefore obviously not have been able to see what was objectionable in these tweets. The plaintiff should have provided more information. However, there was no free text field at that time – the court now refers to the possibility of submitting attachments for reporting.
“Today is a bad day for people affected by digital violence and their families,” Bloom said in a press release. “I imagine a defensive constitutional state that takes consistent action in different ways against hate and agitation.” Bloom went to court with the support of the NGO HateAid. Its managing director Joséphine Ballon also sees the decision of the Higher Regional Court as an exposure of the platform’s strategy: “X has for years given the impression that people affected by digital violence can request the removal of content using the official reporting form. Now they are successfully appealing to the court, saying that their own reporting channels are not designed for this.” That’s absurd.
The decision refers to the legal position prior to the Digital Services Act
With the e-Commerce Directive, which was modernized by the Digital Services Act (DSA) just last year, the EU has written in the so-called “notice and action” procedure: hosting providers are liable until they become aware of a potential legal violation – usually not for third-party content – unless the hosts actively investigate it themselves. However, once a notification has been made, for example by users, they can become jointly liable as broadcasters, as Bloom is targeting in this case. The notice-and-action principle was retained under the DSA regime. However, unlike the Network Enforcement Act, reports should now be possible for all types of suspected unlawful activities. In addition, the reporting channels are more extensive. In addition, it is mandatory to publicly name an authorized representative for the delivery of legal documents within the EU.
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“Ultimately” replaced with “undisputed” in third paragraph. We would like to thank an alert reader for pointing out that the decision on the interim injunction sought is undisputed, but the main proceedings are still pending.
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