YouTube only has to comply with a request to delete a video due to alleged violation of personal rights if the violation is easily recognizable. This is what the previous case law of the German Federal Court of Justice says, and the new EU regulation of the Digital Services Act does not change this legal situation. The Nuremberg Higher Regional Court explains this in a final judgment in favor of YouTube.
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Unfortunately, the main facts of the case are difficult to ascertain from the published judgment. The focus is on a YouTube video in Farsi by a journalist living in the USA. In it, he criticizes the behavior of a German limited company and three men associated with the company as dishonest. This company places workers from Iran with German employers, for which the employees apparently have to pay fees. The three men are “taking money out of the pockets” of the Iranians they place, the journalist complains.
He also states that two of the people named, the partner Professor R., who does not appear to the public, and the manager and partner W., who appears to the public, have no specialist knowledge of job placement, that the company does not have its own office at the given German address, that it does not have a license for job placement, although this is mandatory, and that the commercial register entry contains “a bunch of fraud and lies”. The video was leaked to the company before it was published.
OLG reverses LG ruling
The professor does not want to put up with such criticism and in November 2020 initially complained about the video that had already been published at the time using a YouTube form. On the same day, YouTube responded by asking about the specific statements that were incriminated and when they appeared in the video. Half a year later, the professor had a letter from his lawyer sent to YouTube, which in turn responded with questions about details. At a time not mentioned in the judgment, the applicant sent YouTube an excerpted translation of the statements in question.
Another six months after the lawyer’s letter, he sent YouTube a warning with a request to submit a cease-and-desist declaration. YouTube then blocked the video in Germany, but did not submit the cease-and-desist declaration. The professor went to court and won in the first instance before the Nuremberg-Fürth Regional Court. The Nuremberg Higher Regional Court (OLG) has now overturned its judgment of November 14, 2023 (case no. 11 O 7452/21).
Accordingly, YouTube was not obliged to block the video in Germany or internationally, neither under the new Digital Services Act (DSA), Article 6 paragraph 1nor according to Article 17 of the General Data Protection Regulation (GDPR), which stipulates the “right to be forgotten”. The professor must deal directly with the author of the video, not with YouTube. The Nuremberg Regional Court does have international jurisdiction because the company and professor are based in Germany. However, the requirement for the host provider (here YouTube), who is not involved in the video production and selection, to be obliged to delete content is still that the alleged violations of personal rights are “easily recognizable”. And that is not the case here.
The legal principles
First, the OLG explains the principles: A host provider does not have to check videos in advance, but is liable as soon as it has knowledge of violations of law. Whether a video violates personal rights depends on a balance between the right of the person concerned to protection of their personality and the provider’s right to freedom of expression and freedom of the media. The provider is only obliged to take action if the complaint of the person concerned is “so specific that the violation of law can be easily confirmed on the basis of the person concerned’s claim – i.e. without detailed legal and factual review.”
The Higher Regional Court then explains the different classification of factual statements and expressions of opinion. In the case of factual statements, their truthfulness is particularly important: “True factual statements must generally be accepted, even if they are detrimental to the person concerned, whereas untrue statements must not.” In the case of expressions of opinion, it is more complex: attacks on human dignity and formal insults do not have to be accepted, but that does not apply to this case. In the case of other criticisms, “the seriousness of the impairment of the legal interests concerned is important for the assessment.” Business owners must have particularly thick skin: “Especially in business transactions, one must also put up with harsh and exaggerated criticism,” the Higher Regional Court quotes the Federal Court of Justice (BGH) from its high-performance magnet decision.
Accusations such as “fraud” or “theft” are not statements of fact about criminal liability, but expressions of opinion. It is expressly irrelevant whether the criminal law definitions are met or, as in this case, whether labor placement in Germany actually requires a license: “…according to the consistent case law of the Federal Court of Justice, legal assessments are generally to be qualified as expressions of opinion and not as statements of fact.”
