News spreads at lightning speed, especially on the social media platform Facebook. It only takes a few clicks to publish a post from a friend or a stranger in your own timeline. Possibly sometimes so quickly that you haven’t read the other user’s post yet. Do you need a short notice from Facebook here?
In any case, the Karlsruhe Regional Court is of the opinion that Facebook should be allowed to issue such a notice.
Fact check before sharing a post?
The applicant runs a political blog. On her Facebook profile, she regularly posts the articles published on her site with a short teaser. In early January 2022, she also used this method to post an article that had appeared on her website the day before. The subject of the article was, in particular, a dispute with the order issued shortly before the Karlsruhe Regional Court against the respondent, who operates the platform of the social network “Facebook”.
However, “very many” users were not able to spread this contribution as usual by simply “sharing”. In this context, they were confronted with the following information:
“Do you really know what you’re sharing right now? To ensure you are fully informed of what this article is about, please take the time to read it.” or “Look carefully at what you are sharing before you share. To know what you’re sharing, it’s always a good idea to read articles first.”
This is followed by the “Open article” and “Share further” buttons. The applicant felt that her rights had been violated by this notice. She was of the opinion that these were patronizing and paternalistic pretensions, which, in the usual language, expressed reservations about the journalistic content. This is a disparagement and hindrance in the competition between the parties.
LG sees no impediment to sharing the post
The district court of Karlsruhe (LG Karlsruhe, judgment of January 20th, 2022, file no. 13 O 3/22) decided on this new notice that is displayed when sharing an unread post on Facebook and did not agree with the blog operator’s view. First and foremost, she was never prevented from publishing her or the author’s contribution on Facebook. A statement on the content of the contribution by the respondent or by her commissioned “fact checker” is currently not available. It seems unrealistic that users would be deterred from sharing the content by such a notice. It only takes a single click to actually share the post – even if you haven’t read it.
In the context, the references are not a detrimental value judgement, but a neutral reminder of what is actually self-evident – after all, you should only pass on something that you have taken note of in terms of content. In addition, the Chamber took into account that both parties can invoke fundamental rights, in particular freedom of expression and the professional exercise of their respective business model. However, the Chamber is of the opinion that all of these possible fundamental rights positions are only abstractly affected, but not specifically, so that the impact on the blog operator remains below the encroachment threshold. This results in particular from the fact that neither the applicant nor her author are prevented from expressing their opinion. Their readers are also not affected in their freedom of information. For these reasons, nothing stands in the way of the Facebook notices. Because according to the judges, it must be possible to stimulate Facebook users to think through such overlays.
In addition, the court has already rejected the right of disposal under Section 8 Paragraph 1 Sentence 1 of the Act Against Unfair Competition (UWG), because the behavior of the respondent that was the subject of the complaint was not in accordance with the law § 3 Abs. 1 UWG inadmissible. For the reason that neither a disparagement of the applicant’s journalistic performance nor an unfair hindrance to their competition can be assumed. It is true that the operator of Facebook, by posting the contested fact check notice and linking it to the plaintiff’s post, committed a business transaction within the meaning of § 2 para. 1 no. 1 UWG made in favor of one’s own company and there is also a direct competitive relationship. However, what is missing is the unfair business activity.
Does Facebook patronize its users?
The regional court therefore saw in the references only a neutral memory. Whether one can see a neutral indication in the memory, which indirectly affects Facebook itself (brief reminder: the published article referred to an order obtained against the respondent), remains at least worthy of discussion.
The decision is not yet final.
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