In its ruling of 16.08.2016 (judgment of 16.08.2016 – VI ZB 17/16), the BGH decided that a child’s right to unhindered development of their personality and undisturbed development can be impaired by an offensive Facebook post.
After a harmless argument between two primary school children, the mother of one of the children posted a Facebook entry.
In it, she insulted the ten-year-old child, who had argued with her daughter, as “antisocial scum” and “scum brat”.
She also claimed that her daughter had been “beaten up” by the ten-year-old child.
The mother did not give the child’s name.
Publication claim of rubric and injunction tenor have their own appeal value
The local court (judgment of 26.11.2015 – 65 C 558/15) dismissed the action for injunctive relief and publication of the heading and injunctive relief tenor on the Facebook page of the defendant mother.
The AG subsequently set the amount in dispute at less than € 600.00.
The statutory appeal value for lodging an appeal is therefore not reached.
The appeal that was nevertheless lodged was deemed inadmissible by the Regional Court of Koblenz (judgment of 18.3.2016 – 6 S 220/16) with reference to the fact that the appeal value was not reached.
The plaintiff now turned to the BGH with a corresponding appeal on points of law.
What is interesting about its decision is that the claim for publication of the rubric and injunction tenor is to be assigned a separate value which is to be added to the value of the injunction application in accordance with Section 5 ZPO.
This increases the value of the subject matter of the appeal to over € 600.00, and the Regional Court must deal with the matter on appeal.
Broad impact is not the only indicator for determining the appeal value
When assessing the value of the complaint, the broad impact of the insult on Facebook alone should not be taken into account.
Rather, the effect of the insulting statement on the child itself should be given additional value.
In the case of minors, it is not only a question of whether the injured party can be identified by a large number of Facebook users, but also of the impact on the child’s personal development.
In addition, insults that are initially only context-related and only identifiable to a small group of people do not necessarily remain so in the future.
There is a permanent risk that the offended person will be associated with the post through the comment function or even through a link.
Special status of minors in social media
The BGH’s decision is to be welcomed.
It makes it clear that the BGH is well aware of the extent of defamatory statements in social media.
Representation in social media is playing an increasingly important role in the development and unfolding of minors’ personalities.
When evaluating a defamatory statement in social media, it is therefore not only the broad impact of the defamatory statement that is important, but also the impact of the insult itself in the case of minors.
The Court of Appeal must now decide whether the plaintiff can still obtain an injunction on the merits.
The BGH has annulled its decision and referred the case back to it.
High relevance of the complaint value for insults on Facebook in practice
In the case of defamatory statements in social networks, it is regularly necessary to consider obliging the infringer to publish the rubric and tenor of the injunction in addition to the injunction – and not just to achieve the value of the complaint.
However, it remains to be seen to what extent such publications will have a deterrent effect on personality violations and cyberbullying attacks in the future.