SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION One example of the first school of thought, in which it was held that Facebook had to respect its user’s freedom of expression, is the decision in favor of the right-wing politician Heike Themel by the Higher Regional Court Munich, Germany, from August 2018. Themel’s account was suspended after commenting in response to a slur—in an online debate below a Facebook post—that she couldn’t argue with another user as they were “[argumentative] unarmed]” and it “wouldn’t be fair” from her side. The Court examined Facebook’s community guidelines and held that Facebook’s unilateral prerogative to decide which posts or comments breached its community guidelines was in violation of German contract law. Instead, the interests of both parties that agreed to the contract had to be taken into account. The Court emphasized that the purpose of Facebook, as a social media platform, was to give its users a “public marketplace” for exchanging views and opinions, and noted that in the context of the right to freedom of expression, permissible expressions of opinions cannot be deleted from the platform. As Themel’s comment did not constitute criminal hate speech according to the Court, Facebook was ordered to reinstate her comment and grant her access to her Facebook account. Similarly, the Regional Court of Cologne, Germany (2018), found that Facebook could not block a user’s account for harsh comments, or remove comments related to specific incidents, which do not constitute incitement as penalized by the German Criminal Code. The user had criticized asylum seekers in Germany using degrading terms. When interpreting Facebook’s Community Standards section on hate speech, considering the right to freedom of expression, the Court underscored the open and vague wording of the language used by the company. Thus, for the Court, an average user would be right to assume that Facebook offers everyone the opportunity to disseminate facts and opinions on all conceivable topics, including comments with drastically formulated value judgments, as long as they are non-punishable under German law. In January 2020, the Higher Regional Court of Munich, Germany, reiterated once again its position that Facebook must not sanction any comment which is covered by an individual’s right to freedom of expression as guaranteed in the German Constitution. It emphasized that this right is not absolute but limited by criminal law and by conflicting fundamental rights, such as the right of personality of other individuals. Any platform’s decision qualifying a post as forbidden hate speech is fully reviewable by courts. The concrete statements in question, which referred to Muslim refugees as “invaders”, were—in the opinion of the Court—still protected by freedom of expression and, thus, couldn’t serve as the basis for suspending the user’s Facebook account. However, since Facebook’s state-like obligation to respect freedom of expression derives from its purpose as a forum for the general exchange of information and opinions, companies could avoid such duty by opening forums that are, from the beginning, tailored for a particular purpose. A different approach was taken by the Regional Court of Heidelberg, Germany (2018), which held that Facebook’s Community Guidelines met the requirements of transparency and non-discrimination under German contractual law, and adequately considered users’ rights to freedom of expression. The Court focused on the nature of fundamental rights as imposing negative obligations addressed towards the state, not other private entities. While they deploy (indirect) effects on the contractual relationships between private parties, this does not mean that Facebook must respect aggressive speech to the same extent as the state does. Instead, Facebook must consider its user’s right to freedom of expression, but it also has a wider margin of appreciation than the state when limiting it. This stream of argumentation was shared by the Higher Regional Court Stuttgart, Germany (2018), when assessing the suspension of a user account following anti-migration comments. The Court held that the suspension was lawful and confirmed that the platform’s community guidelines met the requirements of transparency and non-discrimination under German contractual law. While Facebook was bound to respect freedom of expression to a significant degree, especially “given the respondent’s dominant position in the market for social networks and the great importance of freedom of expression in a democratic constitutional state”, Facebook itself can invoke fundamental rights such as “virtual domiciliary rights” and entrepreneurial freedom. Also, as Facebook is liable to incur penalties for not removing criminal comments under the German NetzDG, it is permitted to avoid such responsibility by removing questionable content. 9