The Federal Court of Justice has imposed new rules on Facebook when deleting posts. However, the current ruling did not cover the basic problem: Furthermore, the US company is allowed to intervene massively in the formation of political opinion in Germany via its “domestic law”-arbitrarily and independently of the German legal system. By Tobias Riegel.
The Federal Court of Justice (BGH) has declared the General Terms and Conditions of Facebook for the deletion of contributions and the blocking of users ineffective, as reported by media. The Third Civil Senate of the BGH justified this according to the reports on Thursday in Karlsruhe with missing hearing rights of the affected users. Facebook should not temporarily block user accounts and delete posts without asking. The deletion rules as of 19 April 2018 are ineffective, according to the third Civil Senate of the BGH (Az. III ZR 179/20 and III ZR 192/20).
Two Facebook users had made derogatory comments about Muslims and immigrants and were then temporarily blocked. As a basis, Facebook had relied on its “community standards”. According to the media reports, users had taken action against this. The court has found that Facebook must inform the users concerned at least retrospectively about the removal of the posts and the intended account blocking and give the opportunity to counter-express. Accordingly, the previous appeal judgments were partially overturned. Facebook must publish the deleted posts again and must not delete them again.
Restricts Facebook’s “house right”!
This is good news on the one hand: these new rules, which oblige Facebook to provide information and the opportunity to react in the event of deletions or blockages, are of course overdue, but are therefore no less welcome. In a larger context, however, they can also be classified as eyewash. Because there is also a problematic part of the judgment – that in which Facebook is granted a “fundamental right” to exercise its “house right” (also in Germany). The US company is thereby granted the development of a private communicative “parallel justice”. This does not have to be based on German laws, but may continue to use its own terms and conditions as a basis for deletions, blockages, etc. The FAZ writes about this:
“As the presiding judge Ulrich Herrmann explained in the reasons for the ruling, Facebook can basically delete posts or block users even if their posts do not violate criminal law. However, the aim is to find a balance between the fundamental rights of the company and those of the users on the basis of ‘conflicting fundamental rights’.”
There are conflicting views on the subject. Some observers strictly define Facebook as a purely private company that provides services. The great success of the network and the resulting central social importance in numerous countries should not lead to disadvantages for the company – for example in the form that the company is deprived of sovereignty over deletion practice by nation states.
The other view sees Facebook as a central social tool of (also political) communication in numerous countries. This tool is too important as a channel of political opinion formation to leave the direction solely to the US company. This position requires the German legislature to force Facebook to accept German law and, for example, to delete only posts that violate paragraphs such as insult or incitement to hatred. The practice that a US company can intervene massively in the political discussion in Germany according to its own taste must therefore be restricted. German laws would then have to apply as a guideline for deletions, etc., and not the terms and conditions or the political ideas of Facebook employees. I agree with this point of view.
There is not only state censorship
In the debate about politically motivated deletions and blockages on Facebook, Twitter or Youtube, it is often claimed that censorship can only be state-owned, which is why the arbitrary and politically motivated deletion practice of private tech companies cannot be described as censorship. This definition, if ever true, has been overtaken by reality: the tech corporations exercise massive censorship and they use their pre-eminence to engage in opinion-making in numerous countries in their own political sense and from the United States. The positions on censorship have sometimes even turned around: In some areas (such as deletion practice), the state would have to become active in order to prevent private censorship. The new rules now decreed by the BGH are completely insufficient for this purpose.
On the subject of partially privatized censorship, the thoughtful pages have written numerous articles. That the term “hate language” is far too vague to justify censorship, but that Facebook also uses this rubber vocabulary to delete posts that contradict the “Community Guidelines” with a “deletion team” of around 150 employees from Berlin with the Bertelsmann subsidiary Arvato:
“While terms such as insult, coercion or incitement are objects of the German legal system and clearly defined, the term hate comment is not defined in more detail and the specification ‘directly attack’ is vague and is interpreted arbitrarily outside the legal system of Facebook or Arvato and Co.”
“Facebook and Twitter are neither providers of content nor forum operators, but software providers who are mercilessly overwhelmed with the legal control of user activities within their software offer and are actually not responsible for it. Here, part of the legal system is outsourced and transferred to private service companies. Not Facebook, Twitter and Co., but state authorities have to decide what is obviously punishable and what is not obvious, but still legally punishable.”
With laws against the opinion power of tech companies?
A more inconspicuous type of censorship based on algorithms: “The monopolists from Silicon Valley determine what they get to see-intransparent and undemocratic”.
“In Poland and Russia, this form of private arbitrariness could soon be banned: for example, the government in Poland wants to make it unattractive for social media providers to block accounts with heavy penalties, as media reports. Russia has also just passed a law that threatens (Western) Internet companies with penalties up to blocking in Russia if they censor Russian media or Russian bloggers.”
And the double-edged view of “social media”:
“Because the counter-public, which the Internet companies now partly censor radically and self-gloriously, they have previously made possible: Facebook, Google and YouTube also have a share in the fact that a media landscape beyond the established corporate media could arise on the Internet. Now, however, it is precisely the temporarily helpful tech companies that are a potential threat to these freedoms of expression. The current censorship efforts for the Internet come from both this private side and the state.”