SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION applied the so-called “Doppelhypothese” test (dual hypothesis), developed for preliminary injunctions in constitutional proceedings, which requires the Court to balance the possible consequences when a preliminary injunction is granted, but the final claim is ultimately rejected in the principal proceedings, and vice versa. The Court concluded that the consequences that would arise if the applicant was denied access to its Facebook page clearly outweighed the consequences that would arise if the respondent was temporarily obliged to restore access, even if in the main proceedings it was ultimately decided that restricting access was lawful. One year later, the Higher Regional Court of Dresden, Germany (2020), had to decide whether Facebook was permitted to block access to its platform to users who associated with “hate organizations”, as determined by Facebook —in this case the right-wing association “Ein Prozent”. The Higher Regional Court emphasized that social networks are in principle free to exclude “hate organizations” and their supporters under their terms of use, as long as these exclusions are not arbitrary, and take into account the users’ fundamental rights and the economic effects of a permanent exclusion. However, it pointed out that the classification of a “hate organization” as such is fully reviewable by the Court, which must consider all individual circumstances. In the case at hand, the Court considered that the objective conditions laid out in Facebook’s terms and conditions for considering “Ein Prozent” as a “hate organization” were met. Similar circumstances led to a remarkable divergence in two decisions issued by the Court of Rome, Italy. In February 2020, the Court held that Facebook was entitled to suspend the accounts of the neo-fascist party “Forza Nuova” and its members. After their accounts were suspended due to racist, fascist and xenophobic comments, Facebook users approached the Court, arguing that the company’s actions violated their right to freedom of expression. The Court conducted an extensive overview of national and international legislation and case law. It observed that international law, when assessing the limits to freedom of expression, does not allow for any protection of hate speech or discrimination. Furthermore, it analyzed jurisprudence by the ECtHR and as well as recent initiatives by EU institutions to combat hate speech in the digital sphere —such as the Code of conduct on countering illegal hate speech online. The Court concluded that the suspensions were in accordance with Facebook’s Terms of Service and the Terms themselves were lawful, as hate speech is not protected by the right to freedom of expression, and Facebook is both permitted and required —under the EU’s Code of Conduct— to take action against hate speech on its platform. However, roughly two months later, the Court dismissed Facebook’s appeal against a preliminary injunction ordering the social network to reactivate the account and restore the pages of the Italian neo-fascist party “CasaPound”. Facebook claimed that violence and racism as enacted by the party’s members amounted to an infringement of its Community Standards, thus allowing the company to disable the party’s account. The Court went substantially deeper into the merits than the German Constitutional Court did in the “Der III. Weg” case, and stressed that the limits of freedom of expression are set by criminal law and law of associations, enacted by the Italian legislator. It held that Italian law does not prohibit neo-fascist associations in themselves, unless they attempt to reconstruct the Fascist Party of WWII. Facebook’s Terms of Use, then, must be interpreted and applied in compliance with the principles of freedom of thought and association as guaranteed by the Italian constitution. Thus, Facebook had unduly terminated the contractual relationship on the basis of a constitutionally protected act of freedom of thought. While the decisions by German and Italian courts differ in their individual results, they follow the same line of argument: A social media platform has to consider the fundamental rights of its users when sanctioning them. The terms and conditions are not at the complete disposition of the platform, but constitute a legally binding instrument which can be interpreted by a court to assess its “true” meaning. Following the doctrine of the horizontal effects of fundamental rights, the courts need to take into account the freedom of expression of the users when confronted with a quasi-monopolistic private entity like Facebook or Twitter. This view is not shared in the United States. Courts there have reiterated again and again that social media platforms are not bound by fundamental rights, rather they are protected from all claims by Section 230. 12