BR prevails before Bavarian Administrative Court: Public service broadcaster does not have to tolerate insulting users on its Facebook pages

Bayerischer Rundfunk (BR) prevailed before the Bavarian Administrative Court in its dispute on blocking a user from commenting on Facebook. The public service broadcaster was represented by SKW Schwarz partners Dr. Martin Diesbach and Florian Hensel. The proceedings dealt with the legal action brought by an internet user whom BR had blocked from using the comment function on the “BR24” and “Das Erste” Facebook pages administered by BR for multiple netiquette violations. The plaintiff demanded that the ban be lifted and complained of a violation of his constitutionally protected freedom of expression, since the station would block unwelcome opinions and persons. He denied having insulted other users and argued that permanent blocking without warning was disproportionate.

Bayerischer Rundfunk, as the defendant, argued that there was no legal claim to activating the commenting function on Facebook. Blocking the plaintiff from posting comments was justified by the fact that he had repeatedly offended other users and it was not reasonable to expect from BR to publish such comments, to have them published, or to risk that similar comments would be posted again by the plaintiff in the future.

In its ruling, the court followed the broadcaster’s opinion. It first noted that all users were equally entitled to access the commenting function and that a reference to netiquette as “quasi terms of use” could not in itself justify a ban. The plaintiff’s ban was however objectively justified and does not violate fundamental rights. He repeatedly committed offenses with his comments, violated other users’ rights, and considerably interfered with the course of the discussion. Also according to the Federal Constitutional Court’s strict standards, the plaintiff’s statements were formal insults and defamatory criticism. The broadcaster exercising its virtual domiciliary right therefore did not violate the plaintiff’s freedom of expression.

The court further stated that it is unreasonable to expect from a Facebook page operator, at least in the case of multiple offensive statements by the same user, to take a close look at the context and to conclusively assess the criminal law relevance of all postings. In consideration of such repeatedly insulting behavior, the operator does not have to tolerate further postings of the relevant user on its page. Finally, BR had also made it clear that this was by no means a lifelong ban, but that the plaintiff was welcome to settle the matter amicably.

“This opinion of the Administrative Court will be relevant for moderating the comment functions and for future decisions to block users,” said Florian Hensel, who represented the plaintiff jointly with Dr. Martin Diesbach. “First of all, it has now been established by the court that internet forum moderators do not have to make a final criminal law assessment of multiple offensive statements prior to banning a user from posting.” Dr. Martin Diesbach added: “Broadcasters may also take into account users’ prior behavior on other Facebook pages and, where applicable, on other social media channels. They should, however, give users the opportunity to distance themselves from their statements. If blocked users do so sufficiently credibly, a claim to regaining access to comment functions may arise.”

The decision of the Bavarian Administrative Court is final.