Germany / Higher Regional Court of Munich (Oberlandesgericht München) / 18 U 1491/19Pre

Country

Germany

Title

Germany / Higher Regional Court of Munich (Oberlandesgericht München) / 18 U 1491/19Pre

View full Case

Year

2020

Decision/ruling/judgment date

Tuesday, January 07, 2020

Incident(s) concerned/related

Other forms of hate speech

Related Bias motivation

Migrant status

Groups affected

Muslims
Refugees & asylum seekers

Court/Body type

National Court

Court/Body

Higher Regional Court of Munich (Oberlandesgericht München)

Key facts of the case

The plaintiff sought the recovery of two posts on a social media profile which had been deleted by the defendant, namely Facebook. In the first post in question the plaintiff had, among others, written: "THEIR majority are criminal invaders, raping and murdering in Germany but still being protected as victims of 'right wing agitation'". The second post, quoting the Hungarian prime minister Viktor Orbàn, called refugees "Muslim Invaders". Facebook lodged an appeal against the decision of a regional court that had found the deletion of both posts illegal.

Main reasoning/argumentation

The Court ruled that the statements made by the first post in question are to be considered as hate speech and constitutes a sedition. As consequence, the deletion of this post was legitimate. In contrast, the deletion of the second post in question was illegitimate, as the statement was covered by the fundamental right of the freedom of expression, as it only constitutes a harsh formulated critique about the refugee crisis which concerns an important question raised by the public.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The Court had to decide whether the statements in question were deleted by Facebook on legitimate grounds.

Results (sanctions, outcome) and key consequences or implications of the case

Facebook's appeal was partially successful. Whereas the court qualified the first post not only as hate speech but even as sedition , it held that the post quoting Viktor Orbàn is protected by the freedom of expression and had, thus, to be recovered.

Key quotation in original language and its unofficial translation into English with reference details

"Mit diesem Aussagegehalt kann der vom Kläger eingestellte Beitrag nicht als direkter Angriff auf Personen wegen ihrer Rasse, Ethnizität, nationalen Herkunft und religiösen Zugehörigkeit im Sinne der Gemeinschaftsstandards der Beklagten gewertet werden. Entscheidend ist, dass in dem Zitat die tatsächliche Grundlage der von Orbán verwendeten Metapher „Invasoren“ - nämlich das massenhafte illegale Überschreiten der Grenze durch die Flüchtlinge - offen gelegt und damit einer eigenständigen wertenden Überprüfung durch den Leser zugänglich gemacht wird."

"Given its content the post uploaded by the plaintiff cannot be considered as direct attack on persons on the ground of their race, ethnicity, national origin and religious belonging in the sense of the defendant's Community Standards. The key reason is that the factual basis of the metaphor "invaders" - namely the illegal border crossing by refugees in huge numbers - as used by Orbàn, was disclosed by the quote and therefor made accessible to readers for their independent assessment."

DISCLAIMERThe information presented here is collected under contract by the FRA's research network FRANET. The information and views contained do not necessarily reflect the views or the official position of the FRA.