OLG Nuremberg, 23.07.2024, Ref.: 3 U 2469/23
The Digital Services Act (DSA), in force since 2022, is a ground-breaking EU regulation that creates a clear framework for the accountability of online services. The aim is to strengthen users' rights, promote transparency in algorithms and at the same time regulate the liability of platforms such as YouTube, Facebook and Twitter for illegal content. The DSA obliges platform operators to provide mechanisms such as notice-and-take-down procedures where users can report illegal content. At the same time, it protects platforms from excessive liability as long as they act quickly in the event of infringements.
The following judgement sheds light on the practical application of the DSA and its impact on the balance between freedom of expression, personal rights and platform responsibility.
A dispute between a professor and YouTube ended up before the Nuremberg-Fürth Regional Court, whose judgement has now been overturned on key points by the Court of Appeal. The case illustrates the complexity of balancing personal rights and freedom of expression in the digital world.
Case Background
The plaintiff, a professor of economics and partner in W. GmbH, considered his right to privacy to have been violated by a video published on YouTube. In the video, which was uploaded by a journalist on the channel "A.", the author expressed critical and sometimes derogatory opinions about W. GmbH and mentioned the plaintiff by name. The plaintiff repeatedly complained about the video to the platform operator YouTube and demanded that it be removed. After the platform only blocked the video for the German domain, the plaintiff went to court.
District Court Ruling
The Nuremberg-Fürth Regional Court found that the plaintiff's rights had been violated and ordered the platform operator to delete the video completely. The court argued that the platform had breached its duty to investigate by not forwarding the plaintiff's complaint to the author of the video. In addition, the regional court deemed certain statements in the video to be untrue statements of fact and therefore a violation of personal rights.
Decision in the appeal proceedings
However, the court of appeal overturned the judgement of the regional court. It ruled that the conditions for liability of the platform operator as a so-called indirect interferer did not exist. The court based its judgement on the following key points:
- No clear violations of personal rights: According to the court, many of the statements contained in the video were to be categorised as expressions of opinion. For example, terms such as "stealing money" or "fraud" in this context were judgemental criticism, not statements of fact. Such expressions of opinion are generally protected by freedom of expression.
- Lack of active legitimisation: Some of the statements in the video referred directly to W. GmbH, not to the plaintiff personally. The court questioned whether the plaintiff was even authorised to assert claims for injunctive relief on behalf of the company.
- Inspection obligations of the platform: The court emphasised that platforms such as YouTube only have to act in the case of clearly recognisable infringements. However, the information provided by the plaintiff was not sufficient to establish a clear violation of personal rights. The platform was therefore not obliged to contact the author of the video or delete the video.
- DSA and data protection law: The appeal to Article 17 of the GDPR, which regulates the "right to be forgotten", was also rejected. The court referred to the new provisions of the Digital Services Act (DSA), which limits the liability of platforms in such cases.
Conclusion
The case illustrates the challenges in the area of tension between personal rights and freedom of expression. While the plaintiff saw a violation of his rights, the court argued that critical expressions of opinion, even if they are polemical, must remain protected in a democracy. The judgement also set clear limits to the liability of platforms such as YouTube and emphasised their role as mediators.
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