In its judgment of 21.07.2016 (Ref.: 16 U 233/15), the Higher Regional Court of Frankfurt am Main partially amended the judgment of the lower court (Regional Court of Wiesbaden of 14.10.2015 – Ref. 5 O 73/14).
The dispute concerned the misuse of a Facebook account.
Insulting content was published on an event page of the plaintiff via the defendant’s account.
The defendant denies having written the content himself.
Based on the “Halsband” decision of the Federal Court of Justice from March 11, 2009 (case reference: I ZR 114/06), the OLG ruled that the owner of a Facebook account can be held responsible for the actions of a third party.
Facebook post to be classified as an insult in the overall context
According to the OLG, the insulting content written in Persian constituted an insult that resulted in a violation of personality rights.
While the lower court considered the statements in isolation and according to their pure wording, the Higher Regional Court of Frankfurt assessed the content in the overall context according to the sender and recipient model.
Indicators for the assumption of an insult are not only the content but also the number of people reached.
In this case, it was a public event that was primarily attended by members of the Persian community.
Postings not made by complainants themselves
Once the content has been identified as insulting, the question of liability arises.
As the plaintiff’s right of personality was violated, he was in principle entitled to monetary compensation.
However, the defendant denied having made the postings himself.
The decisive question was therefore whether the owner of the Facebook account was also liable for postings made by third parties via his account.
Halzband decision: Liability also for improper use by third parties
The court based its decision on the “Halzband” ruling of the BGH.
There, the BGH had assumed the liability of a private owner of an eBay member account in the event of its misuse by a third party.
It was the account holder’s duty to adequately protect his access data from unauthorized access.
If he fails to do so, he must be treated as if he himself had acted if a third party obtains the access data and misuses the account.
Unrebutted presumption that postings originate from the account holder
Even though the Halzband decision concerned an eBay account, the decision could be applied to the Facebook case.
Every Facebook account is assigned to a specific user – there is an identification function.
The terms of use of the two internet platforms are also almost identical.
It can therefore also be assumed that the owner of a Facebook post posted it themselves.
No one may gain knowledge of access data
The defendant’s argument that it is typical teenage behavior to use Facebook in the presence of friends and acquaintances does not release him from the obligation to keep his access data secret so that no one can gain knowledge of it.
This is also enshrined in Facebook’s terms of use.
If the defendant shares his internet connection with other people, there is a presumption that the defendant is the owner of the Facebook account in the event of misuse by third parties.
This presumption can be rebutted by means of the so-called secondary burden of proof.
However, the owner of the Internet connection must then present whether and which persons had access to the Internet connection at the time of the infringement and could be considered perpetrators of the infringement.
The defendant did not comply with this:
“However, even in such a case, it is not sufficient to merely make assumptions or generalized assertions as to how the postings in question could have been made on his Facebook account.”
Fault due to careless handling of access data to be affirmed
As a result, the court found that the defendant was at fault as required for the claim for monetary compensation.
Due to the careless handling of his access data, he had to expect that these would be disclosed to unauthorized third parties and thus lead to illegal activities.