Facebook basically has virtual house rules. That's why posts and comments that violate these house rules are occasionally deleted.

Every Facebook member has accepted these house rules as General Terms and Conditions (GTC) when setting up their Facebook account. Basically, that's fine. If I provide a platform for exchanging content, I as the operator may give all users instructions on how to use it.

However, as Schutt, Waetke Rechtsanwälte GbR in a press release , the legal situation is not as simple as it seems.

The German general terms and conditions law must be observed

However, these requirements do not apply if and to the extent that the “house rules” contradict the strict content control of the German general terms and conditions law. Which clauses are inadmissible can be found in a catalog laid down in the law. Furthermore, a so-called general clause applies. According to this, general terms and conditions must not, in principle, put the other party at an unreasonable disadvantage. The courts decide when such unreasonable discrimination occurs. Since examining such a disadvantage is difficult and you have to know all the judgments that have been made, the creation of general terms and conditions for the lawyer is anything but easy.

A ruling by the Munich Higher Regional Court

In any case, the Munich Higher Regional Court has now decided that Facebook must respect fundamental rights when deleting user posts. In the court's opinion, the regulation in the Facebook terms of use, according to which content can be deleted if Facebook believes that it violates the Facebook rules, represents an unreasonable disadvantage for users. Freedom of expression as a fundamental right is a priority for Facebook users. Rules so that the rules may not restrict this fundamental right. The court refers to the so-called indirect third-party effect of fundamental rights. All fundamental rights not only have a direct effect in favor of all citizens, but must also be taken into account indirectly when examining and interpreting agreements, contracts, general terms and conditions, etc.

Conclusion

Against this background, Facebook is not only allowed to decide at its own discretion what is deleted and what is not, but must always take into account the fundamental rights of freedom of expression and freedom of the press.

(OLG Munich, decision of August 24, 2018, file number 18 W 1294/18)

Timo Schutt
Lawyer
, specialist lawyer for IT law


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