Easily recognizable violation of personal rights? Then YouTube must delete

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YouTube only has to comply with a request to delete a video due to an alleged infringement of personal rights if the infringement is easily recognizable. This is according to the previous case law of the German Federal Court of Justice, and the new EU regulation of the Digital Services Act does not change this legal situation. This is explained by the Higher Regional Court of Nuremberg in a final judgment in favor of YouTube.

Unfortunately, the essential facts of the case can only be gleaned with difficulty from the published judgment. At the center is a YouTube video in Farsi by a journalist living in the USA. In it, he criticizes the conduct of a German GmbH and three men associated with the company as dishonest. According to the video, this company places workers from Iran with German employers, for which the employees apparently have to pay fees. The journalist complained that the three men were "taking money out of the pockets" of the Iranians they placed.

He also states that two of those named, the partner Professor R., who does not appear to the outside world, and the manager and partner W., who appears in public, have no expertise in job placement, that the company does not have its own office at the German address given, that it does not have a license for job placement, although this is mandatory, and that the entry in the commercial register contains "a bunch of frauds and lies". The video was leaked to the company before publication.

OLG reverses LG ruling

The professor did not want to put up with such scolding and initially used a YouTube form in November 2020 to complain about the deletion of the video, which had already been published at the time. On the same day, YouTube responded by asking about the specific incriminated statements and their timing in the video. Six months later, the professor sent a lawyer's letter to YouTube, which in turn responded with questions about the details. At a time not specified in the judgment, the applicant sent an excerpted translation of the offending statements to YouTube.

Another six months after the lawyer's letter, he sent YouTube a warning letter requesting a cease-and-desist declaration. YouTube then blocked the video in Germany, but did not issue the cease-and-desist declaration. The professor went to court and won at first instance before the Nuremberg-Fürth Regional Court. The Higher Regional Court of Nuremberg (OLG) has now reversed its ruling of November 14, 2023 (Ref. 11 O 7452/21).

Accordingly, YouTube was not obliged to block the video in Germany or internationally, neither under the new Digital Services Act (DSA), Article 6(1), nor under Article 17 of the General Data Protection Regulation (GDPR), where the "right to be forgotten" is enshrined. The professor must deal directly with the author of the video, not with YouTube. It is true that the Nuremberg Regional Court has international jurisdiction because the company and professor are based in Germany. However, the prerequisite for a deletion obligation for the host provider (in this case YouTube), who was not involved in the video production and selection, is still that the alleged violations of personal rights are "easily recognizable". And this was not the case here.

The legal principles

First, the OLG explains the principles: A host provider does not have to check videos in advance, but becomes liable as soon as it has knowledge of infringements. Whether a video violates personal rights depends on weighing up the right of the person concerned to protection of their personality against the provider's right to freedom of expression and media freedom. The provider is only obliged to take action if the data subject's complaint is "so specific that the infringement can be easily affirmed based on the data subject's allegation - i.e. without a detailed legal and factual review."

The OLG then explains the different classification of factual claims and statements of opinion. In the case of factual statements, their truthfulness is particularly important: "True factual statements must generally be accepted, even if they are detrimental to the person concerned, whereas untrue statements are not." This is more complex in the case of expressions of opinion: attacks on human dignity and formal insults do not have to be accepted, but this does not apply in this case. In the case of other criticism, "it depends on the severity of the impairment of the legal interests affected." Entrepreneurs must have particularly thick skin: "Especially in business dealings, one must also put up with harsh and exaggerated criticism," the OLG quotes the Federal Court of Justice (BGH) from its high-performance magnets decision.

Accusations such as "fraud" or "theft" are not statements of fact about criminal liability, but expressions of opinion. It expressly does not matter whether the criminal law definitions are met or, as in this case, whether labor recruitment is actually subject to licensing in Germany: "...according to established case law of the BGH, legal assessments are generally to be qualified as statements of opinion and not as statements of fact."