G: Rights against social network providers for deletion of posts

Sept 29, 2021 Benn-Ibler Rechtsanwälte

According to the Federal Court of Justice (Bundesgerichtshof, BGH), users of the social network Facebook have a right to the unblocking of the post that was blocked and deleted under the accusation of hate speech and for the injunction of a renewed account block insofar as they were not informed about the deletion of the post and the blocking of the user account and were not given the opportunity to respond.

Facebook had changed its terms of use as of April 19, 2018 to the effect that posts must not violate community standards and thus hate speech in particular. The plaintiff, a Facebook user, had written and published a post that fell under the ban on hate speech from the terms of use. Facebook then deleted the post and blocked the user's account. The user sued for the deleted post to be unblocked and for the account block to be lifted.

In its ruling of July 29, 2021, the BGH decided that Facebook's terms and conditions for deleting user posts and blocking accounts in the event of violations of the communication standards set out in the terms and conditions are invalid. The reservations granted by change of use unreasonably disadvantage the user contrary to good faith, Section 307 para 1 sent 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).

This is because Facebook's terms and conditions do not provide for a binding procedure required by the principles, which serves as a means for an appropriate balancing of the interests of the impaired fundamental rights, the user's freedom of expression on the one hand and Facebook's freedom to exercise its profession on the other.

The ban on hate speech in itself would be effective insofar as such a binding procedure would take the form of a notification of the deletion of the post and the blocking of the user's account, and the user would be given the opportunity to respond with a reassessment.

BGH III ZR 192/20 (29.07.2021)