The Federal Constitutional Court has just issued a preliminary injunction (einstweilige Anordnung) in what may turn out to be a landmark case about the constitutionality of Facebook bans.
The case involves a Facebook post from January 21, 2019 by a far-right group called the “Third Way” (Der III. Weg), which bills itself as “National, Revolutionary, Socialist”. The post linked to this article (g), “Winter Assistance Stand in Zwickau-Neuplanitz”, which described a charity action by the political party for local residents. The article began:
In the neighborhood of Neuplanitz in Zwickau, there are many people who could be generally described as socially and financially cut off (abgehängt). While more and more asylum-seekers who are foreign both in type/species (artfremd) and culture are given shelter in the tower-blocks there, some of whom express their gratitude with violence and crime, while many Germans who live there have hardly any chance to earn a proper living.
Immediately after the Facebook post was published, Facebook notified the authors (the political party) that it had been banned as “hate speech”, and the party’s Facebook page would be suspended for 30 days. When the party objected on free-speech grounds, Facebook responded by deleting the party’s entire account.
The party then went to court, seeking an injunction forcing Facebook to re-instate its account and remove all limits on the visibility of its Facebook posts. The Frankenthal Regional Court declined to issue the injunction. In the Court’s view, the post contained illegal content, as defined by Section 130 of the German Criminal Code, which prohibits “incitement to hatred”, defined as speech which:
1. incites hatred against a national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population or calls for violent or arbitrary measures against them; or
2. assaults the human dignity of others by insulting, maliciously maligning an aforementioned group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population,
Section 1 (3) of the controversial German Network Enforcement Act adopts this (and other) definitions of hate speech from general German law, and requires online platforms to take action against illegal speech. The lower court concluded that the article contained hate speech. Thus, Facebook was not only entitled to but required to remove links to it. The party appealed to the Higher Regional Court, which also declined the injunction (allowing the ban to remain in place).
The party appealed to the Federal Constitutional Court, asking for it to overturn the lower court’s decision and grant the injunction requiring Facebook to lift the ban. The Court agreed (g), overturning the lower court’s decisions in part. As in all injunction cases, the Court carefully explained that its decision was not a decision on the merits of the case — i.e. whether the ban was justified or not. When a court decides an injunction, it merely checks to see whether the legal claim is not “frivolous” (offensichtlich unbegründet). The Court held that it was not — that is, the “Third Way” party had a reasonable chance of proving that its Facebook post was constitutionally protected political speech, not incitement to hatred.
Further, even though Facebook is a private company, the protections for freedom of speech in the German Basic Law have an “indirect effect” (g) (mittelbare Drittwirkung) on private third parties. Therefore, Facebook may have to obey some of the principles of the German constitution, including free-speech protections, when it decides whom to censor or ban. The Court most recently invoked this doctrine in a case involving a 16-year-old who had been placed under a nationwide stadium ban by the German Football Federation after causing trouble at one game. The FCC held that even though the Federation was a private entity, it was still required to respect (g) fans’ constitutional rights to free association and free speech when issuing stadium bans. This doesn’t mean the Federation or Facebook cannot ban people, it just means they must allow the parties a fair process which gives adequate weight to their constitutional rights.
Once the Court finds that the political party had some chance of winning on the merits, it then balances the harm to the parties: is the harm caused to one party if the injunction is granted more serious than the harm caused to the other party if it is not? Considering that Facebook is used daily by “30 million Germans” to engage in political and social discussion, a complete ban on speech by the “Third Way” party in the run-up to European Parliament elections causes it severe and irreparable damage. Facebook, for its part, suffers very little harm if the injunction is granted — it merely has to allow the party to continue posting, but is still entitled to monitor the posts for content which is obviously illegal.
The Court hasn’t decide the merits of the case yet. However, as this analysis (g) of the decision by Erik Tuchtfeld points out, the constitutionality of Facebook and Twitter suspensions or bans have been cropping up increasingly in German courts, which signals a need for guidance from above. Even if the FCC doesn’t take this case, it’s likely to take a similar one. And if it decides Facebook and Twitter must respect the rights of users under the German Constitution (which seems likely), the results could be far-reaching indeed.