In the proceedings
on the application
by way of a temporary injunction
the decisions of the Regional Court of Frankenthal (Pfalz)
of March 8, 2019 – 6 O 56/19 –
and
of the Palatinate Higher Regional Court of Zweibrücken
of April 17, 2019 – 4 W 20/19 –
and declare that
1.order the defendant to pay a fine for each case of non-performance
penalty payment due of up to 250,000 euros, alternatively imprisonment of up to
six months, or imprisonment for up to six months,
to unblock the applicant’s Facebook page at the URL https://www.facebook.com/ with the name “Der III. Weg” and to allow her to use the functions of www.facebook.com again;
2.order the defendant to pay a fine for each case of non-performance
penalty payment due of up to 250,000 euros, alternatively imprisonment of up to
six months, or imprisonment for up to six months,
to refrain from using the applicant’s Facebook page under the URL
https://www.facebook.com/ with the designation “Der III. Way\” because of
of sharing the contribution “Winter relief stand in Zwickau-Neuplanitz” to
and block the use of the functions of www.facebook.com
to withhold or delete the contribution or to delete their
Restrict visibility;
3.alternatively, in the event of irretrievable deletion of the data of the
The applicant, the defendant, on penalty of a fine for each case of
Failure to pay a penalty payment due of up to 250,000 euros, or alternatively
Mandatory detention for up to six months, or mandatory detention for up to six months,
is ordered to remove the applicant’s Facebook page under the URL
https://www.facebook.com/ with the name “Der III. Way\” again
and to enable it to use the functions of www.facebook.com
again.
Applicant:
Der Dritte Weg,
represented by the entire board, consisting of the chairman Klaus Armstroff, the deputy chairman Matthias Fischer, the treasurer Matthias Hermann and the assessors René Teufer and Robin Liebers,
Eisenkehlstraße 35, 67475 Weidenthal, Germany
- Authorized representative:
Attorney Andreas Wölfel, Schloßweg 8, 95709 Tröstau –
the 2nd Chamber of the First Senate of the Federal Constitutional Court by
the judges Masing,
Paul,
Christ
unanimously on May 22, 2019:
- 1. Facebook Ireland Ltd, 4 Grand Canal Square, Dublin 2, Ireland, is ordered by way of a temporary injunction to temporarily unblock the applicant’s website at the address www.facebook.com/ with the name “Der III. Weg” for the period until the official final result of the election of the members of the European Parliament from the Federal Republic of Germany has been determined and to allow the applicant to use the functions of www.facebook.com again for this period. The right and obligation to check individual content for its compatibility with its terms of use, the rights of third parties or criminal law and to delete it if necessary remains unaffected by this.
- 2. the motion is otherwise rejected.
- 3) The State of Rhineland-Palatinate must reimburse the applicant for the necessary expenses incurred in the proceedings for the interim injunction.
G r o u n d s :
I.
1
The applicant uses the social network “Facebook”, which is widely used in Germany, to comment on current political events and to report on her party work (respondent). With her urgent appeal, she is challenging the deletion of one of her posts and the subsequent blocking of her user account by the defendant.
2
On January 21, 2019, the applicant published a link to an article on her website entitled “Winter relief stand in Zwickau-Neuplanitz” under the user account operated in her name. It states, among other things:
“There are many people in the Neuplanitz district of Zwickau who would generally be described as socially and financially excluded. While more and more asylum seekers from different backgrounds and cultures are gradually being accommodated in apartments in the prefabricated buildings there, sometimes expressing their gratitude with violence and crime, quite a few Germans in the district have hardly any prospects (…)”
3
Immediately after publication, the defendant informed the applicant that the post violated community standards as “hate speech”. The visibility of the post was therefore restricted and the publication of posts was blocked for 30 days. Following an objection by the applicant, which was justified with reference to the applicant’s freedom of expression, the user account was deleted on January 30, 2019 and its content has been unavailable ever since.
4
Following an unsuccessful warning, the applicant then applied to the Regional Court for an interim injunction ordering the defendant to unblock the applicant’s page and to allow her to use it again, and to prohibit the defendant from blocking the page due to the sharing of the aforementioned post, from withholding the use of Facebook’s functions or from deleting the post or restricting its visibility.
5
1 The Regional Court dismissed the application by order dated March 8, 2019. The page could be blocked and deleted because the statement was unlawful in the Federal Republic of Germany under the Network Enforcement Act and the defendant was obliged to take measures pursuant to Section 1 para. 3 NetzDG in conjunction with Section 130 StGB was obliged to take measures. The breach of the platform operator’s obligations is subject to severe fines pursuant to Section 4 NetzDG. The aforementioned statements would in any case give the platform operator cause to examine Section 130 StGB, as the group of “asylum seekers” as a population group within the meaning of Section 130 StGB is a suitable target for a public offense. By describing them as alien to their species and culture and combining this with “showing gratitude through violence and crime”, this population group is attacked in its human dignity and maliciously disparaged. This means that the defendant is at least at risk of being held liable under Section 4 NetzDG, which is why the blocking and deletion of the post is proportionate.
6
There is also no entitlement to reinstatement of use, as there is no apparent basis for a claim for an obligation on the part of the defendant to re-contract with the applicant and to publish contributions. It is true that the defendant, as probably the best-known social network, plays an important role in the formation of opinion. Nevertheless, the applicant could also use other forms of opinion expression – such as her homepage on the Internet, e-mail, other social networks or other media carriers.
7
2 By order dated April 17, 2019, the Higher Regional Court dismissed the applicant’s immediate appeal. According to the applicant’s submission, its website had already been permanently deleted before the interim legal protection proceedings were initiated. On a proper interpretation of the application for legal protection, it was therefore directed towards the re-establishment of a right to actively use the platform and the pronouncement of a prohibition to block or delete the account to be set up in the subsequent period for the same reasons.
8
This application is unsuccessful because it inadmissibly anticipates the main proceedings. In the present case, the applicant is requesting the unrestricted provision of an account for the purpose of making her political advertising publicly accessible. Such a performance order can only be considered in very exceptional cases if it appears unavoidable in order to prevent significant disadvantages. There was no evidence of this in the present case. It is true that the applicant is a political party that is campaigning for votes for the elections to the European Parliament in May 2019, among other things. However, this alone does not constitute a legal obligation for the defendant as a private company – even assuming a dominant market position in Germany – to provide the applicant with a forum.
9
3 With her application for a temporary injunction, the applicant is pursuing her request. She alleges a violation of her fundamental rights and rights equivalent to fundamental rights under Art. 5 para. 1, Art. 21 para. 1 sentence 1 in conjunction with Art. Art. 3, Art. 2 para. 1, Art. 38 and Art. 19 para. 4 GG.
10
4. the defendant in the main proceedings has made use of the opportunity to comment granted by the Federal Constitutional Court.
II.
11
1. pursuant to § 32 para. 1 BVerfGG, the Federal Constitutional Court may provisionally regulate a situation by means of a temporary injunction if this is urgently required to avert serious disadvantages, to prevent imminent violence or for another important reason for the common good. When examining whether the requirements of Section 32 para. 1 BVerfGG are met, a strict standard must generally be applied due to the far-reaching consequences of a temporary injunction (cf. BVerfGE 55, 1 ; 82, 310 ; 94, 166 ; 104, 23 ; 106, 51 ).
12
As a means of provisional legal protection, the temporary injunction also has the task in constitutional court proceedings of preventing the creation of fait accompli; in this way, it is intended to contribute to securing and preserving the effect and significance of a decision in the main proceedings that is still to be expected (cf. BVerfGE 42, 103 ). Therefore, the reasons put forward for the unconstitutionality of the challenged measure are generally disregarded, unless the main action proves to be inadmissible or manifestly unfounded from the outset (cf. BVerfGE 89, 38 ; 103, 41 ; 118, 111 ; established case law). If the outcome of the main proceedings is open, the Federal Constitutional Court must in principle only weigh the disadvantages that would arise if a preliminary injunction were not issued but the constitutional complaint were successful on the merits against the disadvantages that would arise if the requested preliminary injunction were issued but the constitutional complaint were not successful on the merits (cf. BVerfGE 105, 365 ; 106, 351 ; 108, 238 ; 125, 385 ; 132, 195 ; established case law).
13
2 According to these standards, a temporary injunction is to be issued to the extent shown in the operative part.
14
a) A constitutional complaint that may still be filed is neither inadmissible from the outset nor obviously unfounded. Rather, it does not appear to be ruled out that the challenged decision of the Higher Regional Court is incompatible with the Basic Law insofar as it denied the application for a temporary injunction with the aim of enabling the applicant to continue using the website www.facebook.com.
15
The challenged decisions concern the granting of interim legal protection in a legal dispute between parties facing each other as private individuals regarding the scope of the civil law powers of the operator of a social network that has considerable market power within the Federal Republic of Germany. According to established case law of the Federal Constitutional Court, fundamental rights can take effect in such disputes by way of indirect third-party effect (cf. BVerfGE 7, 198 ; 42, 143 ; 89, 214 ; 103, 89 ; 137, 273 ; established case law). In this context, Art. 3 para. 1 GG may, at least in specific constellations, also give rise to equality requirements for the relationship between private individuals (cf. BVerfGE 148, 267 ). However, neither the case law of the civil courts nor the case law of the Federal Constitutional Court has conclusively clarified whether and, if so, which legal requirements arise in this respect for operators of social networks on the Internet – for example, depending on the degree of their dominant market position, the orientation of the platform, the degree of dependence on that platform and the affected interests of the platform operators and other third parties. The legal relationships under constitutional law are still unclear in this respect.
16
Nor does it emerge with sufficient certainty from the challenged decisions that the content of the contested post must be considered punishable under fundamental rights standards and that this alone justifies the blocking of the post and the user account. For this reason, a constitutional complaint still to be lodged would not be manifestly unfounded.
17
This means that difficult legal issues that cannot be decided in proceedings for interim legal protection have to be decided. Their clarification is reserved for clarification in the main proceedings – if necessary after the main proceedings have been conducted before the specialist courts. Therefore, pursuant to § 32 para. 1 BVerfGG, a weighing of consequences is required.
18
b) The weighing of consequences is partly in favor of the applicant. The consequences that would arise if the applicant were denied the use of her internet presence on Facebook, but it later transpired that the defendant in the main proceedings should have been obliged to reopen access, are considerably more serious than the consequences that would arise if the defendant in the main proceedings were temporarily obliged to restore access, but it later transpired that the blocking or denial of access had been justified. This applies in any event to the period up to the holding of the election of the Members of the European Parliament from the Federal Republic of Germany (European elections), for which the applicant has demonstrated a particular urgency in its application.
19
The applicant uses the respondent’s service, which, according to the respondent’s advertising, is used by over 30 million people in Germany every month to express their political views and comment on current political events. The use of this forum opened by the defendant for the purpose of mutual exchange and the expression of opinions is of particular importance for the applicant, as it is by far the most important social network in terms of the number of users. Especially for the dissemination of political programs and ideas, access to this medium, which is not easily exchangeable, is of paramount importance. The exclusion denies the applicant an essential opportunity to disseminate her political messages and to actively engage in discourse with users of the social network operated by the defendant in the main proceedings. These opportunities would be denied to her if a temporary injunction were not issued and would result in the visibility of the applicant and her forums being significantly impaired for this time. This applies with particular urgency to the period up to the conclusion of the imminent European elections, in which the applicant, as a political party with a mandate pursuant to Section 14 para. 1 sentence 1 EuWG and for which it alone asserts a particular urgency.
20
In contrast, the defendant in the main proceedings is merely obliged by an affirmative decision to continue to fulfill the contractual obligation it has voluntarily entered into to disseminate and maintain the offers posted by the applicant for the time being. In particular, it does not incur any economic costs as a result of the continued provision of the offer per se that go beyond the extent associated with the proper fulfillment of the contract vis-à-vis other users. The private autonomy of the defendant in the main proceedings is therefore only affected to the extent that it is provisionally prevented from breaking away from the contractual relationship originally entered into voluntarily.
21
In particular, the issuance of an interim injunction with the tenor of the content does not oblige the defendant in the main proceedings to maintain and disseminate unchecked posts that are unlawful or in breach of its terms of use. This is because its right and obligation to check individual content for compatibility with its terms of use, the rights of third parties or criminal law and to delete it if necessary remains unaffected by the provisional provision of the account on the basis of this order. Legal recourse against any deletion decisions by the respondent in the main proceedings is then open to the civil courts, which, in the context of examining contractual or quasi-contractual claims of the applicant, are then also responsible for examining whether the decision of the respondent in the main proceedings is compatible with the values of the Basic Law, even taking into account the particular circumstances of the individual case (cf. BVerfGE 148, 267 ).
22
The defendant in the main proceedings has not specifically demonstrated that the applicant has repeatedly given rise to objectionable content in the past, which would give rise to particular monitoring and processing efforts that would be significant in view of the large number of users and the business operations geared towards this.
23
3) In all other respects, the application for a temporary injunction remains unsuccessful. The applicant has not substantiated that she would suffer further serious disadvantages as a result of the blocking of the post mentioned by her; in particular, she is free to post posts on the social network again – in compliance with the criminal laws, the terms of use of the defendant in the main proceedings and conflicting rights of third parties.
24
4 The decision on the reimbursement of expenses is based on section 34a para. 3 BVerfGG.
25
This decision is incontestable.
Masing
Paulus
Christ