Introduction: In its decision of March 4, 2025 (Ref.: 16 W 10/25), the Higher Regional Court of Frankfurt ruled that host providers – i.e. platforms that make third-party content available on their own websites – no longer only have to remove posts that have been reported as illegal, but now also have the obligation to block content with the same meaning.
OLG Frankfurt obliges Facebook to proactively delete deep fake videos with the same meaning
The plaintiff was the physician and television presenter Dr. Eckart von Hirschhausen. In the past, he had repeatedly advertised his so-called “Hirschhausen diet”. However, videos repeatedly appeared in which Dr. Eckart von Hirschhausen advertised other weight loss methods and remedies. The problem with these videos: Hirschhausen never advertised these methods and remedies. The circulating videos were created using deep-fake technology. Various personality attributes – such as his voice and face – were used. This created the impression that the advertised methods and remedies were supported by Hirschhausen – but this was not the case.
Dr. Eckart von Hirschhausen reported one of these deep fake videos and Facebook deleted it. However, a new video with almost identical content was circulated shortly afterwards, which differed only marginally from the previously reported video. Hirschhausen also reported this video, which was then also deleted by Facebook. In summary proceedings, he demanded an injunction from the Meta Group and requested that all videos with identical content no longer be distributed. Hirschhausen was unsuccessful before the Frankfurt Regional Court, but the Frankfurt Higher Regional Court ruled that Facebook was obliged to delete the deep fake video.
What obligations do platform operators have in the fight against illegal content?
Article 8 et seq. of the Digital Services Act (DSA) stipulates that intermediary services have no general obligation to monitor the information they transmit or store or to actively investigate circumstances that indicate illegal activity. Illegal content is therefore generally only deleted when the platform becomes aware of the illegality through the reporting function – the so-called “notice and take down” principle.
In the present case, however, the Higher Regional Court of Frankfurt came to the conclusion that the Meta Group already had an active duty to review the second video. The Senate justified this obligation by stating that Hirschhausen had already reported a video that hardly differed from the second video in terms of content. The content was identical and Facebook should therefore have blocked the second video without any further warning.
ECJ to decide on host providers’ active inspection obligation
A similar case is currently before the Federal Court of Justice. There, the politician Renate Künast also brought an action against Facebook and is seeking a declaration that the platform has an active duty to review content with the same meaning. However, the proceedings before the Federal Court of Justice have been suspended and the issue has been referred to the ECJ for a preliminary ruling.
If the European judges come to the conclusion that host providers must check their platforms themselves in the event of indications of legal infringements, this would be a considerable additional expense for the providers.
