The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the
CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission
summarise the facts of the case and key legal considerations of the decision. For further information, please
consult the CODICES database.
Please cite the abstract as follows:
Abstract of the German Federal Constitutional Court’s Order of 22 May 2019, 1 BvQ 42/19 [CODICES]
When referring to the original decision, please follow the suggested form of citation for decisions of the
Court.
Abstract
Second Chamber of the First Senate
Order of 22 May 2019
1 BvQ 42/19
Headnotes (non-official):
1. Under specific circumstances, Article 3.1 of the Basic Law may give rise to requirements pertaining to the right
to equality in the context of relationships between private actors. Whether and to what extent this also affects
private law claims vis-à-vis operators of social networks has not yet been clarified in the case-law of civil courts
or of the Federal Constitutional Court.
2. At least until the 2019 European elections are concluded, Facebook is obliged to grant the applicant access to
its Facebook profile and pages.
Summary:
I.
In January 2019, the applicant, a right wing political party, published an article on its website and shared it on its
Facebook page. The article contained the following passage: “In the Zwickau neighbourhood Neuplanitz, there
are many people one might call left behind in social and financial terms. While more and more foreign asylum
seekers, who sometimes express their gratitude by violence and criminal offences, were accommodated in the
apartments in the prefabricated high-rises, many Germans in this neighbourhood do not have any prospects
(…).” Thereupon, Facebook notified the applicant of the fact that the article was considered hate speech and thus
violates Facebook’s Community Standards. On these grounds, Facebook restricted the visibility of the article
and, for 30 days, the applicant’s ability to post on Facebook. Following the applicant’s objection based on its
freedom of expression, the user profile was disabled and its contents are no longer available. Applications for
preliminary injunctions lodged with the regular courts remained unsuccessful. The applicant challenged these
court decisions.
II.
The Federal Constitutional Court decided to issue a preliminary injunction.
The decision is based on the following considerations:
Preliminary injunctions are intended to contribute to securing and preserving the effect and significance of a
decision in the principal proceedings that is still to be expected. Therefore, the reasons put forward for the
unconstitutionality of a challenged measure are generally not taken into consideration, unless the principal
proceedings are inadmissible from the outset or manifestly unfounded. This is not the case here. If the outcome
of the principal proceedings is open, the Federal Constitutional Court weighs the disadvantages that would arise
if a preliminary injunction were not issued but the constitutional complaint were successful in the principal