Update IP, Media & Technology No. 99

Facebook's obligation to review content of similar meaning and the reasonableness of human evaluations in individual cases

I. The case

The facts underlying the judgment concern an unlawful "meme" containing a misquote of the plaintiff (OLG Frankfurt a. M., judgment of 25.01.2024 - 16 U 65 / 22). The plaintiff is a German politician and member of the Bundestag. The defendant is the operator of the social network "Facebook". The meme published by a user shows the plaintiff and contains a statement allegedly attributable to the plaintiff. The so-called "caption" of the meme read: "Integration starts with you as a German learning Turkish!". This statement was never made by the plaintiff.

At first instance, the defendant was ordered to cease and desist and to pay monetary compensation in the amount of EUR 10,000. The defendant appealed against the judgment.

II. The decision

The OLG Frankfurt a.M. confirmed the finding of the lower court that the quote constituted an unlawful infringement of the general right of personality. For this reason, the defendant is liable in the role of indirect interferer for all other similar memes on its platform. The plaintiff had referred to the relevant meme, which was sufficient to trigger the defendant's obligations to check and act with regard to analogous and identical memes.

The OLG further explains what is to be understood by "analogous" memes. It makes it clear that an "analogous" meme cannot simply be assumed if it contains the exact same statement but contains, for example, spelling mistakes. Rather, the requirement for a meme to be "analogous" is also fulfilled if linguistic and graphic elements have been added. What matters is that the memes give the incorrect impression that the meme is attributable to the person concerned.

Furthermore, the Higher Regional Court of Frankfurt a.M. made it clear that it does not cross the line into unreasonableness for platforms if, under certain circumstances, content is subjected to a "human, case-by-case assessment" with regard to its similarity of meaning, if necessary. Furthermore, the content should be searched out using automated techniques and means and then deleted.

With regard to the order to pay monetary compensation to the defendant against the plaintiff, the OLG Frankfurt a.M. does not share the view of the lower court. It is true that the defendant is liable for aiding and abetting by omission as a result of a guarantor's duty, which arises from the time of knowledge of the unlawful meme. The defendant had failed to delete the illegal content. However, in the opinion of the court, this did not constitute such a serious violation of personal rights that monetary compensation was justified.

III. Opinion

In essence, the ruling means that from now on Facebook is not only obliged to delete illegal content, but also to remove content from the platform that is similar in meaning. According to the OLG Frankfurt a.M., the decisive factor here is that no further notification by the person concerned is required. This imposes a proactive obligation on the "Facebook" platform to search the platform for illegal content or content with the same meaning.

Against this background, the question arises as to how this decision can be reconciled with Art. 8 DSA. Art. 8 DSA stipulates that platform operators may not be subject to general monitoring obligations for stored or transmitted content.

However, the ECJ has already dealt with this issue. In its decision of 3 October 2019 (case reference: C-18 / 18), the ECJ stated that it is not in breach of Art. 15 para. 1 EC Directive (now replaced by Art. 8 DSA) if platforms are obliged to remove similar content. However, this presupposes that certain aspects that speak in favor of the similarity of meaning have been specified in advance, so that an independent review and investigation by the platform is not necessary. Rather, the platform should be able to rely on the prior notification of the person concerned in this regard.

Nevertheless, the question remains as to how this relates to the Higher Regional Court's statement that a human assessment of individual cases may also be necessary under certain circumstances. The court standardized this possibility in particular with regard to memes that are similar in meaning to the reported memes, but the similarity in meaning does not only result from a different spelling or punctuation. Memes could also be identical in meaning if they were worded differently or contained different word or graphic elements.

However, this possible obligation of the Higher Regional Court of Frankfurt a.M. to assess each individual case on a human basis does not contradict the ECJ's decision. This follows in particular from the fact that the ECJ provides for the use of automated technical means for researching certain content, but not for assessing its content. Therefore, it cannot be assumed that automated technical means can provide a complete assessment of the similarity of meaning of different content. In this context, it should primarily be pointed out that technical aids are not yet able to recognize linguistic nuances such as sarcasm, irony etc.. Therefore, there will definitely be content whose evaluation is simply inaccessible to automated technical means. Accordingly, if the exceptionally human-handed assessment of individual cases is inadmissible, some content could not be checked for consistency of meaning. This would not be in line with the ECJ's ruling, which does provide for a review of equality of meaning

Nevertheless, it remains exciting, as the Higher Regional Court of Frankfurt a.M. has allowed the appeal due to the general importance of this question. It therefore remains to be seen how the BGH will rule on this issue.

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