Case law is increasingly recognizing that blocking a user account on a social network without consulting the person concerned is only acceptable in exceptional cases. The Schleswig-Holstein Higher Regional Court (OLG) has now given a corresponding decision (Ref. 1 U 70/22). In a now published decision of 8 November, the First Civil Senate of the Court of Appeal in Schleswig emphasized that Facebook had no right to remove and block a controversial post by the plaintiff. The blocked person had commented on the result of the district council elections in 2021 as follows: “Germans are very sick. Germany is done.”
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Facebook initially removed the post citing hate speech and suddenly blocked the plaintiff for 30 days in September 2021. The platform operator had already blocked his account multiple times in the same year citing violations of its community standards. It states: “We define hate speech as a direct attack on people – not concepts or institutions – based on protected characteristics: ethnicity, national origin, disability, religious affiliation, race, sexual orientation, gender. , gender identity and serious medical conditions.” The defendant argued that the violation of this restriction was “obvious at first.”
Facebook initially considered itself entitled to temporarily disable posts if a violation of its terms of use was “considered seriously”. In this case, intervention is not contrary to duty, since taking into account different interests one has to be able to react quickly and requires a certain discretion in assessment. Despite the plaintiff’s objection, the service provider initially stuck to this valuation. Only after further review did they deem the posting a violation. The Higher Regional Court speaks of “sharply formulated political criticism”, although the word ill should neither be understood literally nor as a personal insult to all Germans.
no claim for compensation
civil senate outlines the guiding principles of decision: “The provider of the social network does not have the right to remove a user’s post if it mistakenly believes that the post violates the communication standards regulated in the terms of use.” If he reactivated a post that he had removed in violation of the contract, there is no real assumption that it would be re-approved. However, the User has the right to avoid re-blocking without prior notice and to be given the opportunity to provide a counter statement. The operator must specify exceptions to this rule in its terms and conditions. Unless he does so, the prior hearing requirement applies in any case. The blockade represents a particularly serious interference with freedom of expression.
The plaintiff also claimed that there was evidence that the defendant was imposing the lockdown on the instructions of the federal government. He also claimed a claim for non-physical and material damages of 50 euros per day. OLG rejected it. The necessary serious interference with ordinary individual rights, the harm of which cannot be satisfactorily compensated in any other way, does not exist. This also applies to claims for damages under the General Data Protection Regulation (GDPR). Facebook, on the other hand, ensured that the blocking notice did not have to be removed and the associated counter did not have to be reset. The Higher Regional Court has allowed the appeal, meaning the Federal Court will likely have to deal with the contribution and account block again.
(AKN)
