In a recent decision of December 19, 2021, case no. 1 BvR 1073/20 (published with an official press release dated February 2, 2022), the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) set aside several judgments of the Berlin civil courts. The Berlin civil courts had denied the plaintiff, who alleges she was exposed to hate speech on a social network, the right to demand from the operator of the social network access to customer data, i.e., the full names of the users who had posted the content that the plaintiff considered to be hate speech. In the view of the BVerfG, the Berlin courts had failed to properly balance the parties’ interests and thereby had violated the plaintiff’s fundamental rights.
The plaintiff, a member of the German Parliament for the Green Party, had sought from the operator of a social network access to the names of several users who, in plaintiff’s view, had committed hate speech on the social network.
German laws against hate speech provide a statutory right for victims of hate speech on social media to be granted access to the customer data of users who commit hate speech against the victims. This statutory right was introduced to enable victims of hate speech to bring civil actions against those users.
It is important to note that German law prohibits operators of social networks from granting access to customer data unless a competent German District Court has issued a warrant following an express application by the aggrieved party.
The plaintiff had filed 22 applications for warrants with the Berlin District Court. Upon the plaintiff’s appeal, the Berlin Court of Appeal finally dismissed 10 applications because it considered the underlying posts as not sufficiently severe to constitute acts of criminal insult, which in turn would qualify as hate speech within the meaning of the German Hate Speech Act.
The BVerfG set aside the appeal decision and ruled that these 10 applications should be re-examined. In the view of the BVerfG, the Berlin Court of Appeal had failed to sufficiently assess the conflicting fundamental rights in question, i.e., the right of freedom of speech of the users of the social network on the one hand and the personal rights of the plaintiff on the other hand which must be carefully balanced against each other. The BVerfG made clear that a key factor for this balancing test is the fact that protecting the personal rights of politicians and public officials is in the public interest. In addition, the court emphasized that written statements – including those on social media – should be made with more care and restraint than spoken statements.
Contrary to what many news reports have suggested, the decision of the BVerfG is not a “clear victory” for the plaintiff over the users who had committed hate speech. The BVerfG did not order the operator of the social network to grant access to the names of those users. Rather, the BVerfG provided guidance for competent German courts to properly balance conflicting fundamental rights when deciding on applications for warrants regarding access to customer data.
It is now up to the Berlin Court of Appeal to reassess the plaintiff’s pending applications. In light of the BVerfG’s considerations, we expect these applications to finally be successful.
The German government also will likely take a close look at this decision since the government is currently considering possible action against offshore providers of certain instant messaging services which, other than the social network operator in the present case, apparently ignore the requirements under the German Hate Speech Act.
 See section 14 of the former Telemedia Act (TMG), section 21 of the Telecommunication and Telemedia Data Protection Act (TTDSG) in conjunction with section 1(3) of the Hate Speech Act (NetzDG).