User comments at the ÖRR: The radio can delete more easily

That could have been difficult for Mitteldeutscher Rundfunk (MDR). Every month around 40,000 users post their comments on the station’s Facebook page. Ten employees working in shifts evaluate which of these violate the in-house rules (so-called netiquette).

In particular, contributions that have no connection to the programs broadcast by MDR are sorted out. On the other hand, a user complained to the Federal Administrative Court. For the MDR, this could have meant having to check the comments in a much more complex manner in the future.

But for the time being there is the all-clear. The broadcasters are entitled to delete comments from their appearances on social media if they are not related to programs from the outset (Ref.: 6 C 12.20). The court decided on Wednesday. Particularly relieving for the complainant MDR: He does not have to listen to the users before deleting their posts, nor does he have to notify them later.

MDR – Mitteldeutscher Rundfunk, you are censoring!! That’s why I hired a lawyer.

The plaintiff in a deleted Facebook comment

The plaintiff originally posted 14 comments on the MDR Facebook page. Most of them referred to a previous deletion and criticized the handling of their own entries. “MDR – Mitteldeutscher Rundfunk, you censored !!”, it said there. “It’s not for nothing that I hired a lawyer.”

The rules are intended to prevent the ÖRR from competing with the press

The Leipzig administrative court had only considered a post to be permissible, with which the commentator had actually reacted to a broadcast, the responsible higher administrative court confirmed the judgment. The Federal Administrative Court essentially did the same.

The court referred to the provisions of the Interstate Broadcasting Treaty that was still in force at the time. It stipulated that the content of telemedia offerings from broadcasters must always be closely linked to broadcasts. The reason for this was complaints from private media companies that the public service and thus contribution-financed offers were not allowed to compete directly with the commercial offers of the press. The regulations were therefore also included in the new media state treaty.

The Federal Administrative Court concluded from these provisions that comments in chat forums maintained by broadcasters on social media such as Facebook must also be directly related to the broadcast. This would be an encroachment on the constitutionally protected freedom of expression. According to the judgment, this is constitutionally justified. At the same time, the regulations would give the MDR the power to delete. The plaintiff had objected that the rules were limited to broadcasting. They would not apply to him as a user.

However, the plaintiff was not entirely unsuccessful. According to the court’s findings, the MDR wrongly removed another post. On an MDR program “Nationwide raid against neo-Nazis”, the user wrote in a statement that was also deleted: “Will the assassin from Strasbourg be found?”, referring to an Islamist attack. Here the lower courts had handled the requirement of the program reference “too narrowly”, it was said.

The Federal Supreme Court nevertheless strengthens freedom of expression

Before reaching its verdict, the court had thoroughly considered the case. The presiding judge pointed out that broadcasters – which is often forgotten – are subject to fundamental rights, meaning that they also have to take into account the freedom of expression article in the Basic Law vis-à-vis their users.

Apparently it follows for the court that not too high demands may be placed on the program reference. So if right-wing extremism is reported on, it should obviously be permissible to also talk about Islamism.

The question of which procedural obligations the broadcasters have when dealing with such contributions also took up a significant part of the negotiation. Hearings and notifications are dispensable.

However, it seems possible that the broadcasters will still be obliged to keep deleted comments available so that they can be activated again after a successful legal action for users. This could then be found in the written reasons for the judgment, which, however, are not published until a few weeks after the announcement.

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