Obligation to delete illegal posts

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Platform operators obligated to delete posts following the verdict of the Higher Regional Court (OLG) Frankfurt

When illegal content is published via social media, platform operators are responsible. This was decided by the OLG Frankfurt in its judgment on January 25, 2024 (case number: 16 U 65/22). Accordingly, the host providers must delete such posts if they become aware of them.

Offensive, discriminatory, and false posts on social media are a widely discussed issue. However, affected individuals are not defenseless, according to the commercial law firm MTR Legal Attorneys at Law, which advises among others in IT law. Affected individuals have the opportunity to take action against illegal content, as shown by the judgment of the OLG Frankfurt on January 25, 2024.

Meme with a false quote

The procedure was initiated by a so-called meme that was posted about a politician on a social platform. It showed a picture of the politician with her name and a supposed quote from her. However, the quote was made up.

The politician took action against it and was successful with her lawsuit for cessation. Already in the first instance, the Regional Court Frankfurt obliged the defendant operator of the platform to delete the meme and to refrain from making identical or core equivalent content publicly accessible on the platform. In addition, the court sentenced the defendant to pay damages amounting to 10,000 euros.

The internet corporation appealed against the judgment, but was largely unsuccessful. The OLG Frankfurt only overturned the compensation for damages but confirmed the obligation to refrain.

Violation of personality rights

The Higher Regional Court Frankfurt made clear that the false quote constituted an illegal intrusion into the general personality rights of the plaintiff and violated her right to her own words. However, what the platform operator must do to prevent the publication of such illegal content was disputed. The OLG clarified that the concrete knowledge of an illegal post obligates the provider to also prevent the publication of identical or equivalent posts in meaning.

Host provider liable as indirectly responsible disturber

As an indirectly responsible disturber, the defendant operator of the platform is liable to ensure that all further identical or equivalent publications to the post are deleted, the OLG Frankfurt clarified. In the present case, the defendant had deleted the first meme upon knowledge within the set deadline. However, when it subsequently reappeared multiple times on the platform, the defendant reacted only after being notified again. This was too late, as the initial knowledge of the illegal post had triggered not only the obligation to delete but also further inspection duties. Especially since the plaintiff had made clear what she understands under equivalent posts. This knowledge should have triggered a review and behavioral duty regarding the existence of equivalent posts, which should also have been deleted, the OLG continued.

According to the E-Commerce Directive, the defendant does not have a general monitoring duty or a duty to actively search for illegal content. However, in the specific case, there was concrete knowledge of the legal violation. Consequently, the defendant was obligated to prevent such disturbances in the future, the court further clarified. It is not necessary that the publications have identical wording. Rather, it is sufficient if the messages are fully or partially equivalent in meaning.

Research must be reasonable

However, the OLG Frankfurt limited that the research for such equivalent statements must not be unreasonable. According to the jurisprudence of the ECJ, it must be possible with automated techniques and means. Practically, this means that detection of the posts must be possible through algorithms. In general, this is the case, according to the court. This does not preclude that an interpretation of the posts by humans may be necessary. A manual individual case assessment, in combination with technical procedures, is reasonable, the OLG Frankfurt made clear. Especially since the use of AI systems can allow for an automatic preliminary filtering.

The judgment is not yet legally binding, the OLG Frankfurt has allowed revision to the Federal Court of Justice (BGH).


For questions about the obligation to delete and other topics of IT law, MTR Legal Attorneys at Law is at your disposal.

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