Editorial guidelines:

1. The possibility of terminating user accounts in the social networks of Facebook and Instagram for violating \“community standards\“, here: of \“hate organizations\“ and for supporting such \“hate organizations\“, does not violate GTC law.
2. \“Attacks by statements on persons based on ethnic or religious affiliation“ within the meaning of No. 2 of the Community Standards can also be those that are still covered by the freedom of expression of Art. 5 GG.
3. The limit for the prohibition of hate organizations and their supporters is solely the prohibition of arbitrariness.
4. Merely isolated individual statements that do not allow any conclusions to be drawn about the ideological orientation of an organization or emanate from members whose conduct is not attributable to the organization are not sufficient on their own, unless such an ideological orientation that justifies classification as a hate organization can be inferred from the organization’s objectives as stated in its statutes or other statements or from the conduct of its functionaries.
5. The classification as a hate organization or supporter of such an organization must be fully reviewed by the court, taking into account all the circumstances presented and known to the court. Social networks do not have their own scope for assessment in this regard.
6. The fact that an organization is neither monitored by the Office for the Protection of the Constitution nor threatened with a ban does not prevent it from being classified as a hate organization.
7. Subsequent reasons for termination are possible if the reasons were not yet known to the terminating party at the time of termination, but already existed before the notice of termination was given. § Section 3 para. 2 No. 5 NetzDG does not preclude this.
8. Dismissal for supporting hate organizations can generally only take place after a prior warning.
9. The termination of user accounts of a hate organization itself can take place without prior warning.

File number: 4 U 2890/10
Announced on: 16.06.2020

Dresden Higher Regional Court
In the name of the people
Judgment

[…]

the 4th Civil Senate of the Higher Regional Court of Dresden by the Presiding Judge at the Higher Regional Court S., Judge at the Higher Regional Court P. and Judge at the Higher Regional Court R. on the basis of the oral hearing on June 2, 2020

found to be right:

1. The plaintiff’s appeal against the judgment of the Regional Court of Görlitz dated 29.11.2019 – ref. no.: 1 O 295/19 EV – is dismissed.
2. The plaintiff shall bear the costs of the appeal proceedings.

Decision: The amount in dispute for the appeal proceedings is set at € 30,000.00.

Reasons:

I.
A.
The plaintiff (plaintiff) is challenging the permanent deactivation of his user accounts on the social networks yyy and zzz operated by the defendant (defendant); he is also seeking the restoration of a post that was deleted in connection with the deactivation of his user accounts. The defendant had published this post on 26.8. 2018 (zzz) and on 28.08.2019 (yyy) respectively. In response to the plaintiff’s objection, it permanently deactivated his accounts on the grounds that the plaintiff had violated the ban on „hate speech“ (yyy) and „our terms of use“ (yyy). \“our terms of use\“ (zzz). The Regional Court, whose decision is published in MMR 2020, 196, rejected the application for a temporary injunction. The defendant had made it sufficiently credible that the plaintiff was at least a supporter of a hate organization within the meaning of the community standards of both platforms; \“X.Y.\“, with which the plaintiff was intertwined in terms of personnel and content, was to be regarded as such. For details of the reasoning, please refer to the grounds of the contested judgment.

With his appeal, the plaintiff continues to pursue his first-instance claims, deepening his arguments.

He requested:

I.
By setting aside the judgment of the Regional Court of Görlitz dated November 29, 2019 (Ref.: 1 O 295/19), the defendant in the injunction is prohibited from imposing a fine of up to € 250,000.00 for each case of infringement, alternatively imprisonment or detention for up to six months, in the event of repetition imprisonment for up to two years,

1. the following contribution by the injunction plaintiff

to delete and/or block the injunction plaintiff because of this post on www…. to block him, in particular to deny him access to functions such as posting contributions,
if this happens, as on 28.08.2019 with regard to the account of the injunction plaintiff „xxx“, available at the URL https://yyy/;

2. to block the injunction plaintiff on www.zzz, in particular to deny him access to functions such as posting contributions,
if this happens, as on 26.08.2019 with regard to the account of the injunction plaintiff „xxx“, available at the URL https://zzz/.

3. to block the injunction plaintiff due to the classification as a „hate organization“ in accordance with the directive on hate organizations on www.yyy submitted as Annex 31, in particular to deny him access to functions such as posting contributions,
if this happens, as on 28.08.2019 with regard to the account of the injunction plaintiff „xxx“, available at the URL https://yyy/;

4. to block the injunction plaintiff due to the classification as a „hate organization“ in accordance with the directive on hate organizations on www.zzz submitted as Annex 32, in particular to deny him access to functions such as posting contributions,
if this happens, as on 26.08.2019 with regard to the account of the injunction plaintiff „xxx“, available at the URL https://www.zzz/.

II.
Setting aside the judgment of the Regional Court of Görlitz of November 29, 2018 (Ref.: 1 O 295/19), the costs of the proceedings at first instance are imposed on the defendant in the injunction.

III.
The costs of the appeal proceedings are ordered against the defendant.

The defendant claims,

dismiss the appeal.

She defends the judgment of the court of first instance.

For further details of the facts and the dispute, please refer to the content of the exchanged written submissions, including annexes, and the minutes of the hearing dated June 2, 2020.

B.
The admissible appeal by the plaintiff in the injunction remains unsuccessful on the merits.

From the existing user contracts between the parties i.V.m. §§ Sections 241, 280 BGB, the plaintiff cannot derive a claim for injunctive relief due to the deactivation of his user accounts on the social networks yyy and zzz. As a result, he also has no claim to restoration of the post in dispute.

I. Deactivation of the yyy account

That the plaintiff’s registration on the social network yyy created a contractual relationship between the parties which entitles the plaintiff to, inter alia \“share status updates, photos, videos and stories via the … used yyy products\“, to send messages \“to a close friend or several people\“, to create events or groups or to add content to his profile (No. 1 of the terms of use) is undisputed between the parties. This results in an obligation of the defendant (defendant) to offer the above-mentioned services and to allow the plaintiff to do so, from which it can only be released under the contractually agreed conditions.

1The defendant justified the deactivation of the disputed user account vis-à-vis the plaintiff pre-litigation by stating that the post contained in para. 1 of the appeal violated the prohibition of „hate speech“ contained in the Community Standards. Only in the injunction proceedings does it now claim that the plaintiff himself is a \“hate organization\“ within the meaning of No. 2 of its Community Standards, or at least that he is to be regarded as a supporter of the so-called X.Y., which is a hate organization.

a. Contrary to the plaintiff’s opinion, there are no objections to this replacement of the reasons for the account deactivation. When terminating a continuing obligation, it is generally accepted that reasons for termination that were not yet known to the terminating party at the time of termination may be added if they arose prior to the termination (established case law; BAG NJW 1998, 101, 102 with further references; Böttcher in: Erman, BGB, 15th ed. 2017, Section 314 BGB, para. 10). The plaintiff’s opposing view that Section 3 para. 2 No. 5 NetzDG results in a commitment to the originally declared reason for termination does not apply. According to this provision, the complaints procedure to be set up under the NetzDG must provide that the provider informs the user of any decision without delay and gives reasons for its decision. Irrespective of the fact that the NetzDG does not apply to cases in which – as in the present case – a sanction is not based on an unlawful catalog offense within the meaning of Section 1 para. 2 NetzDG and irrespective of the fact that the NetzDG does not have the effect of shaping private law (Friehe, NJW 2020, 1697 (1698)), it cannot be inferred from this obligation to provide reasons that the provider should also be bound to a justification once declared for the further proceedings in deviation from the principles applicable to continuing obligations. The explanatory memorandum to the law (BT-Drs. 18/12356) contains nothing in this regard.

b. The termination of the user relationship resulting from the permanent deactivation is also not invalid pursuant to Section 314 para. 3 BGB invalid. According to this, the entitled party can only terminate within a reasonable period of time after becoming aware of the reason for termination. A comparable provision is contained in 4 No. 2 2nd paragraph p. 5 of the yyy terms of use in the version dated 31.07.2019. According to the defendant’s submission, it first became aware of the plaintiff’s activities in connection with the review of the deletion of the post on 28.8.2019 and the termination initially based on this. The plaintiff has neither claimed nor credibly demonstrated earlier knowledge. As the recipient of the notice of termination, he bears the burden of presentation and proof for this characteristic that precludes termination (BGH NZM 2005, 340, 34; Böttcher loc. cit., Section 314 BGB, para. 20a).

c. Contrary to the plaintiff’s opinion, an alleged lack of transparency of the grounds for termination cannot be held against the validity of the termination declaration. The provision on the \“suspension and termination of accounts\“ in para. 4. 2 of the yyy Terms of Use is closely based on the wording of Section 314 BGB; a lack of transparency of this provision within the meaning of Section 307 para. 1 sentence 2 BGB is not apparent. According to general opinion, the defendant’s terms of use are pre-formulated contractual terms for a large number of cases and are therefore general terms and conditions. The Senate has already decided several times that the power contained in para. 3. 2 of the terms of use is based on criteria that can be objectified in principle and that the reference to the other terms and conditions, such as the community standards that can also be accessed on the yyy homepage, does not lead to a lack of transparency of the clause (Senate, decision of August 8, 2018 -4 W 577/18 -, para. 18, juris). For the clause defined by para. 4. 2 of the yyy terms of use, which also declares violations of the community standards to be grounds for termination via no. 2.1 of the terms of use, nothing else applies as a result. In this respect, good cause may also lie in the fact that the debtor’s conduct calls into question the basis of the contract and jeopardizes the enforcement of contractual claims (BGH NJW 1981, 1666, 1667; Böttcher loc. cit. § 314 BGB, para. 6). Section 307 BGB does not apply to the notice of termination itself. Further formal requirements for a termination based on a breach of the defendant’s community standards are set out in para. 4 . 2 of the yyy terms of use.

2. the Regional Court correctly assumed that the defendant based the permanent deactivation and suspension of the user account on good cause within the meaning of para. 4. 2 of the yyy Terms of Use in conjunction with no. 2 of the yyy GTC. No. 2 of the yyy Community Standards. There are no objections to the effectiveness of the prohibition of \“dangerous persons and organizations\“ and their support under general terms and conditions law, even taking into account the indirect third-party effect of the plaintiff’s fundamental rights. The plaintiff’s credible conduct meets the criteria of a \“hate organization\“. Even when considering all relevant circumstances in the individual case, the termination proves to be proportionate.

a. No. 2 of the Community Standards does not appear to violate the transparency requirement of Section 307 (1) sentence 2 BGB. For the term „hate speech“ used in No. 12 of the Community Standards, the Senate has already decided, in line with the unanimous opinion in case law, that this term is sufficiently defined because it is defined in easily understandable language and, moreover, is supported with examples in such a way that the user can easily recognize what is required of him within the scope of his contractual obligations (decision of 08.08.08.2018 -4 W 577/19; decision of 11.12.2019 -4 U 1680/19; of .16.12.2019 -4 U 2198/19; most recently judgment of 12.05.20 -1523/19; see also OLG Munich, judgment of 22.10.2019 -18 U 1491/19). The prohibition of \“hate organizations\“ on the defendant’s platform contained in No. 2 of the Community Standards is based on this, which defines them with sufficient certainty. Accordingly, a hate organization is \“any association of three or more persons organized under a name, sign or symbol and whose ideology, statements or physical actions attack persons on the basis of certain characteristics, such as ethnicity, religious affiliation, nationality, ethnic origin, gender, sexual orientation, serious illness or disability.\“. For the average user, the requirements for the size, content and degree of organization of a \“hate organization\“ are easily recognizable. At the same time, this definition clearly demonstrates that – contrary to the plaintiff’s opinion – the classification as a „hate organization“ does not depend on the willingness to or the exercise of physical violence. The fact that the defendant does not tolerate such associations in its network cannot come as a surprise to the reasonable average user in view of the efforts to prevent \“harmful conduct\“ that makes other users feel unsafe, including by deactivating the account, which is clearly emphasized at the beginning of the terms of use.

b. The support for such organizations sanctioned in No. 2 of the Community Standards is also sufficiently defined, and in particular is not regulated in a way that deviates from the general use of language and the use in numerous provisions of the Criminal Code (Sections 84 (2); 85 (2); 109; 127; 129 Criminal Code). It can easily be understood as any action that directly promotes the internal organization and cohesion of a \“hate organization\“ or otherwise has a positive effect on the possibilities for action and purpose of the association in any way (see BGH NJW 2009, 3448; Fischer, StGB, 64th ed. § 129 Rn 30). According to the wording of the clause, which is recognizable to the average user, the relevant acts of support are not limited to activities that take place on the user’s yyy page. Rather, it follows from the interaction with 4 No. 2 of the terms of use that \“all circumstances\“ and thus also statements and behavior outside the social network can be taken into account. Otherwise, the support of \“mass or serial murders\“ or \“organized violence\“, which are also listed as case groups, would hardly be conceivable.

c. Contrary to the plaintiff’s opinion, such an act of support does not merely authorize the defendant to remove posts according to the clear wording, but can also result in the termination of the account. In this respect, No. 2, 2nd paragraph of the Community Standards: \“We also remove content that supports or glorifies groups, leaders or individuals involved in such acts\“. However, this merely gives the defendant an additional power of removal, which also extends to content whose authorship can no longer be attributed. In contrast, the fact that the support of a \“hate organization\“ can already lead to the termination of the account follows from the fact that according to para. 2, 1st paragraph, persons who are merely „involved“ in „organized hate“ are also not permitted to be present on yyy.

d. When interpreting this clause, however, it must not be disregarded that the prohibition of \“hate organizations\“ expressed therein has a significant impact on the fundamental rights of users, taking into account the market power and reach of the social networks operated by the defendant. Insofar as company-related interests of the plaintiff are affected, the plaintiff, as a legal entity under private law, can invoke a violation of freedom of expression as well as its general right of personality and the right to an established and exercised commercial enterprise (see BGH, judgment of February 3, 2009, VI ZR 36/07, VersR 2009, 555, juris, para. 10 Senate, judgment of April 1, 2015 -4 U 1296/14 -, para. 96, juris). As constitutional value decisions, fundamental rights have an impact on civil law as \“guidelines\“ and therefore have an indirect third-party effect, which must be taken into account when interpreting general terms and conditions (BVerfG, decision of April 11, 2018 -1 BvR 3080/09 -, para. 32, juris, similarly already BVerfGE 7, 198, 205 et seq. -Lüth cf. for Section 307 BGB Fuchs in: Ulmer/Brandner/Hensen, AGB-Recht, 12th ed. 2016, Section 307 BGB para. 161 with further references). On the part of the provider of a social network, in addition to its general freedom of action and the right to the established and exercised commercial business to which it is entitled, its \“virtual\“ domiciliary right must be taken into account. In the specific consideration to be made here with the defendant’s community standards, it must also be taken into account that the defendant has a quasi-monopoly position in the area of social networks in Germany (see Senate, decision of 8.8.2018 -4 W 577/18 para. 24). This applies all the more if one considers that in the present case not only the exclusion from the social network yyy, but also from zzzin is at issue. Taking this into account, yyy/zzzum is a public communication space characterized by the fact that a variety of different activities and concerns can be pursued on it, creating a diverse and open network of communication (Senate loc. cit. with reference to BVerfG, judgment of 22 February 2011 -1 BvR 699/06 -, para. 70, juris). Therefore, when interpreting the Community standards and the balancing required in this context, it cannot be disregarded that the defendant, due to this quasi-monopoly position in the area of social networks, largely takes over the framework conditions of public communication and thus enters into functions that were previously assigned to the state as a task of general interest. The risk that the defendant will abuse the resulting market power if grounds for exclusion are recognized without restriction cannot be dismissed out of hand. The risk of being permanently excluded from the defendant’s social networks even in the event of a dubious act of support in an individual case can also deter users from expressing critical opinions and exploring the limits of this act of support. At the same time, the plaintiff has credibly demonstrated that it is dependent to a considerable extent on the use of social media for its activities and for recruiting members.

Nevertheless, the exclusion of hate organizations and their supporters and the provision in No. 2 of the Community Standards do not raise any concerns in principle. It must be taken into account that without such a termination option, the defendant would be exposed to the risk of being held liable for injunctive relief as an intermediary for statements made by the plaintiff. The risk that \“hate organizations\“ also violate the rights of third parties through their activities in social networks is obviously higher than would be the case for an average user. In this case, the defendant would not only be exposed to considerable damage to its image, which does not stop at national borders, but would also violate its obligations entered into at European level to actively take action against „hate speech“ and „hate crime“ on its pages. It also seems plausible that numerous users would be deterred from participating in a network that would have to tolerate hate organizations in principle and would only be allowed to delete their statements in individual cases or in the event of specific breaches of contract. In the long term, this could also threaten the defendant’s business model, which is geared towards high user numbers. Conversely, the assumption that the risk of deactivation of a user account due to hate speech and support of hate organizations could have a so-called chilling effect on freedom of expression has not been confirmed in practice to date (Friehe, loc. cit. p. 1698 with reference to empirical studies). Moreover, the general preventive effect of such a ban does not constitute an independent encroachment on fundamental rights. Last but not least, the continued existence of such organizations increases the monitoring effort and thus the costs for the operation of the network; it is also foreseeable that the operator will be exposed to the risk of numerous legal disputes regarding the admissibility of borderline statements. In view of this, the provider must not only have the right to delete individual posts or to exclude the user in the event of a serious breach of contract, but also to exclude \“hate organizations\“ as a whole and permanently due to their fundamental objective. The permissibility of such a power is also supported by Section 1 AGG, which does not exclude discrimination on the basis of a person’s political or ideological orientation; rather, the legislator deliberately refrained from extending the prohibition of discrimination to discrimination based on political convictions (cf. resolution recommendation and report of the Legal Affairs Committee, BT-Drs. 16/2022, p. 13). Council Directives 2000/43/EC of June 29, 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ EC 2000 No. L 180 p. 22) and 2004/113/EC of December 13, 2004 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ EC 2000 No. L 180 p. 22). December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ EU 2004 No. L 373 p. 37) do not contain any further requirements in this respect (BGH, judgment of March 9, 2012 -V ZR 115/11 -, para. 9, juris). The defendant is not subject to an indirect obligation to enter into a contract with all interested parties, which would also constitute a bar on termination, simply because there are alternative portals – albeit with considerably less reach – and users are not prevented from conducting their business activities solely via their own homepage. Due to this competitive situation alone, it is therefore not necessary to place social networks on a completely equal footing with government agencies in terms of their commitment to fundamental rights.

The limit for a ban on hate organizations or their supporters is therefore solely the prohibition of arbitrariness, which prohibits groundless, disproportionate or merely pretextual terminations without objective reason. The question of whether an association constitutes a hate organization or supports such an organization must be fully reviewed by the court, taking into account all the circumstances presented and known to the court; the social network has no discretion in this respect.

e. According to these standards, the permanent deactivation of the plaintiff’s user accounts was lawful.

i. Contrary to the opinion of the defendant and the Regional Court, however, this cannot be based on the fact that the plaintiff supports the so-called X.Y. (X.Y.) financially and organizationally. It is irrelevant whether – as the defendant claims with reference to Annexes B2, B 120-B 122 – X.Y. is a hate organization within the meaning of No. 2 of the defendant’s Community Standards, with which the plaintiff has a „not insignificant relationship“. Even if in principle the mere support of such a hate organization can justify not only the deletion of a post, but also the termination of the supporter account (see 2a. above), a termination based solely on this would be in accordance with § 314 para. If the important reason is a breach of an obligation in accordance with these Terms of Use, termination is generally only permissible after the unsuccessful expiry of a granted remedy period or after an unsuccessful warning. A period for remedial action is only not required if the other party seriously and definitively refuses to fulfill its obligations or if, after weighing up the interests of both parties, special circumstances justify immediate termination. The defendant has not credibly demonstrated that these circumstances exist here. It has not issued a warning to the plaintiff, and the specific acts of support on which the deactivation is based cannot be inferred either from the pre-litigation communications or from its submissions in the injunction proceedings. The defendant has also not argued why support for X.Y. through the financing of campaigns by way of crowd-funding and through unspecified PR activities requires immediate termination without a remedy period.

ii. However, according to the circumstances credibly demonstrated by the defendant, the plaintiff himself fulfils the requirements for a hate organization. However, the close personal ties with X.Y. as pointed out by the defendant are not sufficient on their own, because this only refers to the administrators of the plaintiff’s yyy and zzz site, without it being possible to infer from the defendant’s submission that these persons also play a decisive role with the plaintiff or are allowed to represent him externally. In turn, the defendant has not credibly demonstrated that the plaintiff’s board member A.B. is also involved in X.Y.. Nor can it be inferred from its submissions that the plaintiff is a „pre-field organization“ of X.Y., which is so closely linked to it in terms of personnel and finances that it is, as it were, a legally independent part of this association. The undisputed \“crowd-funding\“ actions, which are documented in Annexes B 81 – 83 actions have remained isolated and do not support such an assumption.

The fact that the plaintiff is nevertheless a \“hate organization\“ within the meaning of the Community standards has, however, been substantiated by the defendant with sufficient probability for the injunction proceedings by submitting Annexes B 88 to B 92. The excerpts contained therein from various statements made by the plaintiff on his homepage not only document a rejection of the Federal Government’s migration policy, but also contain numerous \“attacks\“ within the meaning of No. 2 on refugees and migrants. As with the hate speech in No. 12 of the Community Standards, such an attack exists if persons or groups of persons are hit in the core of their personality and portrayed as inferior in disregard of the principle of equality or denied the right to live in the community (see Senate, decision of February 12, 2020 -4 U 2198/19 -, para. 32, juris). Appendices B 88 to B 92 provide numerous examples of this:

• The article contained in Annex B 88 blames \“asylum seekers\“ without differentiation for an \“explosion of violence\“ in Germany and attests to a consistently high \“potential for violence\“, which leads to \“problems of mass immigration\“ due to the \“false credulity of the asylum lobby and multicultural fanatics\“. Without providing any figures or comparative periods, the article also claims that \“violence by immigrants [nehme] is increasing enormously\“ and that they \“roam the streets armed\“. At the same time, the use of the term „people seeking protection“ in quotation marks negates the seriousness of the reasons for flight of all asylum seekers in Germany.
• The comments on this article, for which the defendant is liable within the framework of the standards developed by case law (see BGH, judgment of 30.6.2009 -VI ZR 210/08; Senate, decision of 1.4.2015, 4 U 1296/14 -juris), further reinforce this impression. It states, among other things: \“The word \“protection seekers\“ is left-wing propaganda after all. In the meantime, the people living in this country have long since become people seeking protection in their own country. We need protection from the harassment, rape, serious bodily harm and murder with which the green colorfulness enriches us… This means that every year a large city of violent Muslim men immigrate.\“.
• The sticker submitted as Annex B 89, which the plaintiff distributes in any quantity via his website, calls in Arabic script to „go home“ and is clearly addressed to migrants and asylum seekers from Arabic-speaking countries without differentiating between Muslims and other faiths. Contrary to the plaintiff’s assumption, the cynical appeal \“your homeland needs you\“ cannot be understood as an understandable concern about a brain drain in the overall context of the plaintiff’s homepage.
• In this context, the user of the plaintiff’s website will also not understand the sticker „No place for invaders“ submitted as Annex B 91 as a general warning against „invaders of all kinds“, but will conclude from this that the plaintiff equates immigration with invasion and rejects migrants and asylum seekers as invaders across the board. This also denies refugees the right to social respect, which can be regarded as „hate speech“ within the meaning of No. 12 of the Community Standards (also for the general accusation of „parasitism“ directed against asylum seekers: OLG Munich, judgment of January 7, 2020 -18 U 1491/19, page 29 with further references; Senate, decision of February 12, 2020 -4 U 2198/19 -, para. 33, juris). The intended mass distribution of the sticker, which is distributed in packs of at least 100, is intended to spread this hate speech widely outside the internet.
• The article submitted as Annex B 92 has the same thrust, in which it says on the occasion of a planned new mosque building in E: \“ The fact that Muslim religious communities also want to gain a foothold in the east of the republic is a sign of Islamic land grabbing, which is the result of decades of mass immigration.\“ Land grab refers to any occupation of land regardless of ownership, consent or acquiescence. The use of this word, which is rarely used today, in connection with \“mass immigration\“ is intended to arouse a feeling of threat and fear of displacement and uprooting in the reader. At the same time, it in turn equates the immigrant with the landowner/invader and places migrants in the vicinity of a non-person.

The impression created by these statements by the plaintiff is reinforced by the actions of its members, which have become the subject of a minor question in the German Bundestag and are therefore known to the courts (Section 291 ZPO). The Federal Government’s answer of 27.4.2018 (BT-Drs. 19/1921) shows that the plaintiff was the subject of two meetings of the \“Joint Extremism and Counter-Terrorism Center – Legal\“ before 16.4.2018 because an \“anti-asylum demonstration\“ had previously been advertised on its homepage. In the period 2016-2017, nine criminal offenses were also directly associated with the plaintiff’s actions, including in connection with the sticker submitted as Annex B 89 and the erection of a fence around a clearing center for unaccompanied refugee minors.

The statements by members of the plaintiff submitted by the defendant and the actions controlled by the plaintiff may still have been within the scope of the freedom of expression set out in Article 5 of the Basic Law, but after all, they constitute „attacks by statements on persons on the basis of ethnic or religious affiliation“ within the meaning of No. 2 of the Community Standards. Taking into account the defendant’s indirect commitment to fundamental rights, a final termination of an account would nevertheless not be permissible in the case of merely selective individual statements that do not allow any conclusions to be drawn about the plaintiff’s ideological orientation or emanate from members whose conduct is not attributable to the plaintiff, unless such an ideological orientation can be inferred from its objectives recognizable in the statutes or other statements or the conduct of its functionaries. Whether this is the case would have to be clarified in the main proceedings by taking evidence. For the preliminary injunction proceedings, which are only aimed at obtaining summary findings, the defendant has made such an ideological orientation sufficiently credible with the above-mentioned documents. In contrast, it cannot be inferred from the affidavits submitted by the plaintiff that he distances himself in any way from attacks against persons based on certain characteristics.

f. Finally, in the required overall assessment, it cannot be assumed that the account was terminated arbitrarily. In the opinion of the Senate, if the plaintiff were to remain, this would be likely to cause damage to the defendant’s business interests, while at the same time the plaintiff has no interest worthy of protection in being able to advertise his activities via the defendant’s portals. This is not altered by the fact that he himself is neither being monitored by the Office for the Protection of the Constitution nor is he currently under threat of an association ban. Rather, within the framework of freedom of contract, the defendant is entitled – albeit subject to the indirect third-party effect of fundamental rights – to choose for itself with whom it enters into a contractual relationship. All in all, the activities listed are to be regarded as so serious that neither the sanctioning of a specific breach of contract on the part of the defendant nor an ordinary termination would have been considered as a milder means. Insofar as the termination is based on the fact that the plaintiff, as a \“hate organization\“, is in principle not entitled to participate in the defendant’s social network, there was also no need for a prior request to stop the conduct complained of, because the plaintiff is not accused of a specific breach of conduct, but the termination is ultimately based on the plaintiff’s fundamental ideological orientation, which does not comply with the community standards, and the disruption of the contractual relationship caused by this.

II. deletion of the post
The plaintiff also has no claim to the restoration of the post on the user account in dispute after the page on which it was originally published was rightly permanently deactivated and the user relationship with the plaintiff was effectively terminated (see I. above). He has not asserted a claim for publication on another page.

III. deactivation of the zzz account
For the reasons described above, the plaintiff also has no claim to the restoration of his zzz account. The statements under I. apply accordingly to the validity of the terms of use on zzz. The zzz Community Guidelines and Terms of Use largely correspond to the yyy Terms of Use in terms of content; in particular, it is also prohibited here to support or glorify hatred against groups (Annex B16); the sanction system also provides, among other things, for the deactivation or blocking of an account and the right to termination for cause (Annex B15, page 5).

Since there is already no claim for an injunction in favor of the plaintiff, the question of whether the application is aimed at anticipating the main action and thus whether there is no reason for an injunction is irrelevant.

C.
The decision on costs is based on Section 97 para. 1 ZPO. The determination of the value in dispute is based on section 48 para. 2 GKG. Although these were injunction proceedings, a value in dispute of € 30,000 is appropriate in view of the significance of the dispute going beyond the individual case and the economic consequences for the plaintiff. € is appropriate.