Frankfurt am Main Higher Regional Court clarifies the due diligence obligations of host providers using the example of the Meta platform in the ‘Hirschhausen Diet’ case
Background of the proceedings
In a widely noted decision, the Higher Regional Court (OLG) of Frankfurt am Main on March 12, 2025 (Case No. 16 W 10/25) further refined the legal situation regarding host providers’ duties of review. Central to the decision was the Meta platform—formerly Facebook—in which, due to the spread of misleading advertising regarding the so-called ‘Hirschhausen Diet’, questions arose concerning liability and obligations to review unlawful third-party content. This procedure serves as an example of the ongoing development of case law in the tension between freedom of expression and the protection of affected individuals from unlawful content.
Relevant facts of the case
The subject of the proceedings was a third party’s advertisement on Meta’s online platform, which exploited the prominence of a well-known doctor to promote alleged diet products. According to the applicant, whose name and image were misused in the advertisement, this constituted a violation of personal rights and deception of consumers. After Meta was notified of the alleged infringement, steps were taken to remove the contested advertisement; however, there remained a dispute as to whether sufficient precautions had been taken to prevent the further dissemination of similar content.
The responsibility of host providers: basics and distinctions
Role and function of host providers
Host providers provide infrastructure and storage space for third-party content without actively monitoring or editorially reviewing such content. Their liability for unlawful third-party content is generally limited to so-called ‘interferer’s liability’ and only arises when the host provider becomes aware of the infringement and nevertheless fails to act.
Duties of review after becoming aware
In its decision, the OLG Frankfurt emphasized the nuanced design of due diligence obligations. According to established case law, not every notification of unlawful content entails a further obligation to monitor. Rather, it depends on the circumstances of the individual case. The more obvious and serious the infringement, the more intensive the host provider’s obligations to review and act become. In this case, particular reference was made to the repeated appearance of similar advertising content and the associated increased risk.
Measures for prognosis and prevention
The court further stated that once a host provider obtains specific knowledge, it is not only obliged to remove the individual reported content but must also examine whether similar violations are to be expected in the future. In such cases, reasonable measures must be taken to prevent further comparable legal infringements. Depending on technical feasibility and practicality, these may include filter measures or increased manual checks. At the same time, such measures must not place a disproportionate burden on the provider’s business model and infrastructure. However, a complete monitoring of all user posts was expressly rejected.
Protection of personal rights and freedom of expression
The OLG Frankfurt am Main emphasized the necessity of a careful balancing of interests between the legitimate protection of personal rights and freedom of communication on online platforms. The judges made it clear that neither a total shielding nor a comprehensive monitoring of third-party content is legally required. Rather, ongoing digitization necessitates an continually adjusted balance of different legal positions.
Implications for operators of online platforms
The decision of the OLG Frankfurt has far-reaching practical consequences for all operators of online platforms, especially for globally active companies such as Meta. It underscores that host providers must respond not only upon official orders, but already to substantiated reports by whistleblowers. At the same time, it becomes clear that reasonable monitoring measures must always be determined on a case-by-case basis, taking into account the size of the platform, the number of posts, and the IT structures.
For companies, these guidelines mean increased requirements for internal compliance processes, especially in the area of monitoring and handling complaints about unlawful content. Investors and stakeholders are also advised to closely observe legal developments in this area, as issues of platform liability can have direct economic effects.
Ongoing proceedings and legal developments
It should be expressly noted that, at the time of publication, the proceedings are not yet legally concluded. The statements of the OLG Frankfurt are made in the context of the applicable legal framework, in particular the Telemedia Act and the relevant case law of the Federal Court of Justice and the European Court of Justice. The decision is therefore part of an ongoing process of legal development, in the course of which further clarifications may be expected.
Source: OLG Frankfurt am Main, Decision of 12.03.2025, Case No. 16 W 10/25
As an internationally active, business law-oriented firm, MTR Legal Rechtsanwalt assists numerous companies, investors, and individuals in dealing with complex legal matters relating to IT, IP, and media law. If you have questions regarding liability risks of online platforms or the defense against unlawful content, our attorneys are at your disposal as competent contacts.
