The Higher Regional Court of Frankfurt, Germany, recently analysed the legal position concerning negative postings on Facebook (25.04.2013, 16 W 21/13). The court had to balance the competing legal concepts of the right to freedom of expression and untrue statements of fact.
Freedom of expression?
The respondent in the case had posted statements asserting that another Facebook user had bought her 22,000 fans.
He wrote the following: “It’s almost a bargain…20,000 international fans for just 359.90 euros. It’s enough to tempt anybody…;-)))”
The assertion was untrue, and led the applicant to seek an immediate injunction under § 935, 936 and 916 of Germany’s Civil Procedure Rules.
The respondent argued that an immediate injunction was unnecessary, as the claimant had waited four weeks from the date the untrue statements were posted before bringing court action.
Injunction requirements
There are three requirements for an injunction to be justified in such a situation.
1. Urgency
The court noted that the applicant had known about the negative posting on 5th February 2013 and first applied for an injunction on 8th March.
It observed that the consequences of the untrue statement and the severity of the violation of the applicant’s social sphere only became clear once a heated debate ensued.
Also the court decided that a lawyer’s warning letter dated 22nd February giving the recipient a week to remove the untrue statements did not diminish the urgent need for injunctive protection.
As a result, the court concluded that while the defendant had delayed in making an application for an injunction, there remained an urgent need for legal protection.
2. Cause of action
The applicant in the case was found to have a legal cause of action. Here judges must consider the all the circumstances of the case, including the autonomy of those who read the statements.
The court found that the untrue statements violated the applicant’s personality rights under articles 1 and 2(1) of the German constitution. This is because from the view point of other Facebook users, the statement made a clear assertion that the applicant had bought her 22,000 fans and not obtained them as a result of her positive image.
The court held that the applicant had sufficiently demonstrated that the defendant had posted the untrue statements on Facebook and that they referred to her.
The applicant was therefore within her rights to seek an injunction and claim for compensation under § 1004(1) sentence 2 and § 823(1) respectively of the German Civil Code.
3. Risk of repetition
The third element is that there must be a risk of repetition. This is generally assumed until the respondent has signed a cease and desist order.
In this case, even though the respondent apologised, he refused to remove the statements or sign a declaration to cease and desist. A risk of repetition therefore remained.
Conclusion
The court’s willingness to assess the sense of urgency on a case-by-case basis and not to submit to strict temporal deadlines is to be welcomed, even if the application in this case was on the boundary of that which is acceptable.
It is also to be welcomed that in the debate on freedom of expression on the internet, untrue statements of fact have no place.
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