OLG Schleswig-Holstein: No social media blocking without prior user consultation

Case law increasingly assumes that blocking a user account on social networks without hearing the person concerned is only permissible in exceptional cases. The Schleswig-Holstein Higher Regional Court (OLG) has now also made a ruling to this effect (Ref.: 1 U 70/22). In the decision published on 8 November, the 1st Civil Senate of the appellate court in Schleswig emphasizes that Facebook had no right to delete a disputed post by the plaintiff and to impose a block. The blocked person had commented on the result of a 2021 district election as follows: "The Germans are so sick. Germany is finished."

Facebook initially deleted the post, citing hate speech, and abruptly blocked the plaintiff for 30 days in September 2021. The platform operator had already blocked his account several times in the same year, citing violations of its community standards. It states: "We define hate speech as a direct attack on people – and not on concepts or institutions – based on protected characteristics: ethnicity, national origin, disability, religious affiliation, caste, sexual orientation, gender, gender identity and serious medical condition." The defendant argued that a violation of this prohibition was "initially obvious".

Facebook initially considered itself entitled to temporarily deactivate posts if a violation of the terms of use was even "seriously considered". In this case, the intervention was not in breach of duty, as it was necessary to be able to react quickly due to the wide range of interests to be considered and a certain amount of discretion was required in the assessment. The service provider initially adhered to this assessment despite the plaintiff's objection. Only after a further review did it no longer consider the posting to be an infringement. The OLG spoke of a "sharply formulated political criticism", whereby the term "sick" did not have to be understood either literally or as a personal disparagement of all Germans.

No claim for damages

The Civil Senate emphasizes in the headline of the ruling: "The provider of a social network is not entitled to remove a user's post if it mistakenly assumes that the post violates communication standards regulated in the terms of use." If he has reactivated a post that he has removed in breach of contract, there is no factual presumption that it will be sanctioned again. However, the user has a right to demand that they refrain from blocking posts without prior information and the opportunity to respond. The operator must define exceptions to this rule in its terms and conditions. As long as he does not do this, the requirement of a prior hearing applies in any case. A blockade constitutes a particularly serious infringement of freedom of expression.

The plaintiff also claimed that there were indications that the defendant was imposing blocks on the instructions of the federal government. He also claimed non-material and material damages in the amount of 50 euros per day. The OLG rejected this. The necessary serious interference with the general right of personality, the impairment of which cannot be satisfactorily compensated for in any other way, was not present. This also applies to the claim for damages under the General Data Protection Regulation (GDPR). On the other hand, Facebook prevailed in not having to delete the blocking notice and not having to reset the relevant counter. The Higher Regional Court has allowed the appeal, meaning that the Federal Court of Justice will probably have to deal with post and account blocking again.

(akn)