Anyone who surfs the internet has known for a long time: communication platforms have to be moderated and regulated, otherwise they get out of control. The Federal Court of Justice (BGH) hammered in a first stake last year as to the rules according to which this can happen. Platforms like Facebook are allowed to set up their own “house rules” for deleting “hate speech,” for example, which are stricter than the far-reaching limits of freedom of expression. This Wednesday, the Federal Administrative Court in Leipzig decided on the public-law version of the problem. According to this, ARD and ZDF not only have the right to delete certain posts, they are even obliged to do so. Because comments from users of social networks must relate to programs from the program.
A user of the Facebook page of Mitteldeutscher Rundfunk (MDR) complained. Four years ago he had a real skirmish with the MDR because some of his comments had been deleted – including his increasingly annoyed protests against the previous deletions. His accusation culminated in the angry sentence: “The MDR may at most delete comments that are illegal, everything else is censorship!!”
The plaintiff commented on a program about a virus introduced by migratory birds
The broadcasters follow their respective “netiquette” on their forums, in which they reserve the right to delete comments that do not comply with the guidelines. This applies, for example, to defamatory and insulting statements, as well as to fake news and calls for violence. There is also a special feature under public law: According to the house rules in force at the time, the MDR also had content deleted “that has nothing to do with the MDR and its programs and content that is not topic-related”.
The Federal Administrative Court has now confirmed this approach in principle. According to this, public internet services would have to be “broadcast-related” in order to protect private broadcasters and the press from cut-throat competition under public law. This follows from the so-called state aid compromise with the EU Commission, in which Germany undertook in 2017 to set clear limits on the internet presence of public service broadcasters in order to protect private providers. That is, if you will, the price of contribution financing. And these limits, according to the court, also apply to user comments. The deletion rules of the MDR are also proportionate. The user does not have to be heard beforehand or notified afterwards.
The plaintiff wrote about a program about a virus brought in by migratory birds: “It’s amazing what is now supposed to be brought in by migratory birds. Up until 3 years ago, nothing was brought in by migratory birds!!” The comment was removed because it was not related to the broadcast. The plaintiff later admitted that the refugee policy of 2015 was meant.
In one point, however, the Federal Administrative Court was right. One of the MDR contributions at the forum was “Nationwide raid against neo-Nazis”. It was about searches at the banned association “Blood & Honor”, four people were arrested. The plaintiff’s comment: “Will the assassin in Strasbourg be found?” MDR deleted the post because the attack in Strasbourg was about Islamist terrorism, not neo-Nazis. The court found that too petty – the post was permissible.