Hi @daphnehk @Klonick @evelyndouek and everyone who is having their morning coffee: The BGH (German Federal Supreme Court) (3rd Civil Senate) has ruled today (cases III ZR 179/20 und III ZR 192/20) "that FB terms and conditions (of 2018) ...
for the deletion of user posts and account blocking in the event of violations of the communication standards set out in the terms and conditions are invalid." Why? because FB "does not simultaneously undertake to inform the user about the removal of his post ...
... at least subsequently and about an intended blocking of his user account in advance, to inform him of the reason for this and to give him an opportunity to respond with a subsequent new decision." (bundesgerichtshof.de/SharedDocs/Pre…)
So: Facebook has to inform users (at least) AFTER blocking/delete a piece of content, and BEFORE they intend to deplatform someone. Why? Because of a weighing of the different rights involved.
A terms of service clause that does not respect the rights of both parties is unreasonable. When examining whether a clause is unreasonable within the meaning of Section 307 (1) sentence 1 BGB, a comprehensive assessment and weighing of the mutual interests is required.
In the present case, the conflicting fundamental rights of the parties - on the part of the users, the freedom of expression under Article 5 (1) sentence 1 of the German Basic Law, and on the part of the defendant, above all, the freedom to exercise a profession under Article 12
must be taken into account and balanced in accordance with the principle of practical concordance in such a way that they are as effective as possible for all parties.
Importantly: This balancing of interests shows that the defendant is in principle entitled to require the users of its network to comply with certain communication standards that go beyond the requirements of criminal law (e.g. insult, defamation or incitement of the people).
FB may reserve itself the right to remove posts and block the user account in question in the event of a breach of the communication standards. However, in order to strike a balance between the conflicting fundamental rights in a manner that is in line with the interests ...
... of the parties, and thus to maintain reasonableness within the meaning of Section 307 (1) sentence 1 of the German Civil Code, the defendant must undertake in its terms and conditions to inform the user concerned at least retrospectively about the removal of a post ...
... and in advance about an intended blocking of his user account, to inform him of the reason for this and to give him an opportunity to respond, followed by a new decision. Source: press release bundesgerichtshof.de/SharedDocs/Pre… and deepL (with some comments)
So basically the Court says that what the NetzDG forces platforms to do is a good balance of rights. In addition the ex ante procedure before accounts deletions is new. What is unclear: What about spam accounts? What about account suspensions? Not deletions? What timeframes?
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